whether there remain disputed issues of material fact and whether cincinnati effectively reserved its rights to deny indemnity coverage and whether all plumbing and should be were somehow prejudiced before they knew that believe that is an alternate ground on which the court could find that there is no appellate jurisdiction there is case on the ninth circuit that a default without a default judgment is not a final judgment and therefore preclude left unresolved by the trial court specifically with respect the access coverage and as i was referencing a moment ago the declaratory judgment complaint explicitly requests a declaration with respect to the access coverage part of the coverage terms and things as i read it one that the district court was wrong in holding that you had not effectively reserved your rights and that the district court needed to clarify whether or not the deductible and the excess coverage were subject to the non preservation where did you raise that point i'm just thinking if i had received your motion as the district court where did you indicate that the district court had question about whether the original decision precluded cincinnati from proceeding on the excess coverage defenses the the question was do we have a right to raise our access temperature offenses and proceed to litigate that and in fact even after the court ruled on the motion for clarification or reconsideration we requested a status conference as we had no argument before the court to have an opportunity question wasn't there on result issues here what about the excess coverage margin it's a whole separate part as to which we've asked for a declaration of our right we don't believe that your decision says no person who is part of the railing th your honor i believe that the declaratory the complaint does in compass of the provisions of the policy the deductable is not cited in a separate paragraph in the complaint whereas for example the excess coverage defenses are was plainly in there in terms of the notice the reservation of rights the coverage issues that were preserved by cincinnati and the the district court understood that i mean because in the reconsideration motion there was a whole discussion about the fact that the application of the ball had not been addressed by the court and that we had not you know we have the right because of the preclusion to address that the duck the ball on the way i read the record in your motion for summary judgment you clearly spelled out these other issues as to your potential obligation to indemnify but then the district court granted summary judgment for f t s and said it was a final order i know that's not dispositive but means that with district courts understanding what was before  then you get to your motion for reconsideration and let's ignore the car for cation part for the moment the only challenge is that the district court erd in refusing to treat your december's second letter in the last case as sufficient preservation of rights in the f t s case basically because the defendants in the f case knew what your client's dition was as to reservation your honor i think the challenge was twofold that there were just few to shoes of material back both with respect to i know you think that but where where is that in the motion so the district court knows what it is you're asking her to rule on that's all i want to be clear about there are several places in the motion and i do have some  the first has to do with the notice occasion of your reservation of rights correct yes and then two and three go to these clarification  judgment in the first instance it's very clear that we had buys the court that there were disputed issues of material fact as to that and so you lost that's all i'm trying to get it to get you lost that the district court ruled against you and said here is my final judgment summary judgment final appealable order then you file for reconsideration and clarification i just honor i think the the everything that's relevant to what you are doing now yes your honor i think the district court in fairness was on notice that we believe the district court had erred no question about that and you gave one reason and then you asked for clarification as to two other matters with respect to the motion for reconsideration we asked the court to consider reconsider the finding as a whole and specifically sought to identify an issue that we thought the court had overlooked we knew the court had ruled against us with respect to the skewed issues of material fact and an reconsideration of respect for the court we didn't  that's the way you're reading this motion yep your honor i believe that the motion i mean the number points are kind of for the convenience of the court but i believe in our motion this is your argument to the district court as to why she should reverse her judgment n the goal of the reconsideration motion is not necessarily to really argue every point presented to the trial court proceeding resolution the question is did the trial court have a fair opportunity to consider those arguments i think the answer is of the court's ruling would bind those parties so that if there were a final judgment ultimately everyone who was a party to the case would be out we don't believe there is a final judgment because the the please the court this is a case about waiver it's about multiple do overs at every level first we have a underlying liability case brought by f t s against all cincinnati default judgment against one but not two of the parties so it's not fly home so it's not appealable well what the district court did is it entered defaults against two defendants and then later on it entered a final judgment against the pla on all of the issues in the act that's where we disagree with plano it resolve the question of whether cincinnati has a duty to defend and has a duty to indemnify the underlying action so it resolves if we didn't give it is it is firm a treatment is it is it deserved but we just we call you say is that you agree with plenty to those who say there is no jurisdiction while we agree with the plaintiffs on the point that that's why i ask you question so to clarify our agreement was with the position they took in their briefs not the position they took this more so but ultimately i think the world fifty four answer is if should be can all plumbing were still in the case by virtue of the fact that no default judgment was entered against them then they are beneficiaries of the ultimate summary judgment never argue in the cincinnati that the defendants in the underlying case had already written while in the cincinnati case their interests were aligned with ours or so i would have imagined that they would have at some point brief says there is no problem all right the court has jurisdiction in footnote your response agree says i agree and that's where we are  today and i think part of the confusion is the parties didn't follow the court's order right right that's that's where the confusion is the court was very clear that this was an issue that needed to be resolved and we were seeking the assistance of a party and basically we got none and this morning we hear about ninth circuit yep and i apologise for that what i was going to say is the confusion is th cincinnati after filing would be appeal moved to dismiss it for lack of jurisdiction for a completely other reason and when we got the court's order we addressed their arguments explicitly that cincinnati sure is still had all of your rights to disclaim coverage there so there hasn't been a ruling one that cla honor yes but i don't that's not in the isolation the sort of claim that you're entitled to a declaration on because really what the declarator to decide anything about whether there's two i'm sorry about the school and that is was entirely proper because the defense duty was resolved by saying that under the primary coverage part they for summary judgment they don't make any of these arguments in their motion to reconsider after they lost they said we there are two things that are waived we think if even if we waive one is the as carved out because you don't have a duty to defend the nexus policy they made the argument that the deduct deductibles carved out even though it doesn't apply to one of the two coverages in the primary policy they never said that a waiver under the primary policy leaves intact there are limits there's lots of mysteries in skinnies but that's not what one of the mysteries is why the person who's got the most to lose i would be happy to supply why do you think there is only a circular case i had your honor in preparation for the argument i did see that you have it in your notes unfortunately i do not have it in my notes and that he ask disappointing and you could argue either way yeah your honor i have i i would like to apologize to the court for underestimating the importance of this question that the argument well let me say our order both parties didn't respond to the court the ninth circuit case all right so you're going to make some arguments on the merits i gather but i don't really think we're going to get there i can't speak for my colleagues with your own or w twenty paragraph twenty one of the complaint where the high deductible is also explicitly referenced in the play for a judgment by cincinnati and your honor with respect to the question about waiver limits it would really be remarkable it is highly improbable that a court below some celebs made a finding that is at odds with the prevailing law on the topic as cited in our brief if you're out or just to do have one thing respectfully one thing with respect to d c law we're not going to argue d c law here today thank you