here to comply with conditions such as not a condition proceed and so the question becomes really is off whether allowing this building to be fakin sixty or because you have failed to comply with the terms of this policy the mortgage holder will still have the right to receive a last payment if the mortgage holder does and then there are three things nick so the a question is how do you define what occurred here was it a violation of the conditions subsequent no no but you do you do  vandalism theft or attempted theft are in fact covered wash's under this policy which they are so up in there is no exclusion for vandalism theft or attempted theft in vacant buildings per se the only time you don't have to pay under this policy is if the building is vacant for more than sixty days prior to the loss that's as simple as simple a building that's vacant for more than sixty days here it's excluded from coverage who say that it merely says we will not pay for any loss even if it's a cover loss you may have up a storm or are if it's a will not pay for any loss or damage caused by any of the following blah blah blah but why would you put in the phrase even if they are covered losses if  it's baiting you're trying to take it out of coverage this is an exclusion it's sad as we will not pay for the loss or damage caused by the following even if it would have been a cover while at the building was much different and the mortgagee clause used the word nigga laugh and the duty of vacancy was affirmatively undertaken by the policy holder because of the faith the building was it would be suspended that that decision turns on the language of deficit still a policy there was an obligation to keep the building taken in order to have any others that's not present in this contract the wells fargo case the michigan case attempts to distinguish water style in the case that we're relying upon of based on the bet that there was an obligation  we think it's improperly decided waterstones makes clear that the first step in the legal framework of the analysis is the last covered in the first place under these undisputed fa was not covered from the inception why should the bank be put in a better position for premium there was never paid for a vacant building or risk that because it's a separate contract you have to look to see if there was covered in the first what if it's a non covered loss in the beginning that there is no coverage for the bank so if i could give  example in the beginning it was a me that would have been covered but for the action of the insured so it was a covered loss but it was excluded as a result of the and action of the insurer sacred it is respectfully i liked disagree it was it was nothing less of an act there was no doing nothing sure this was the condition of the property when it was insured at the time it was insured it was material to the risk it was the risk that earliest did not agree to it so we all know that when we go on vacation right we have timers are lots we we tell the mail to building if it had been burned down there would be coverage what the policy and in the courts you know in the oil out insurance contract to exclude from coverage items and here we're excluding bath and vandalism when the building has been vacant for more than sixty days and this building was vacant for the sixty days the day that the contract inceptive there was no et by the end shirt that took it out of the coverage coverage for a number of perils that the better reasoned approach the one that takes a little bit more thoughtful process is to look and see whether or not the loss was covered in the first place and th because it is a sub or contract the mortgagee cannot have coverage of the loss was not covered in the first place but i do have a couple of questions that were and i think we understand your position and you make an argument here mortgage is paid off and therefore there is no more interest owed to them by brothers would know their independent contract the cases say that that is separate from the insurance so how their words if he mortgagee is paid by you they still owe the market doesn't satisfy the debt obligation yes the whole purpose of the mortgage cause is insure the interest of the mortgage jamie in the property and it's been adjusted twice because brokers pay down the it but if the court properly awarded interest you can argue that that's property rights and that's under the tackling invited here off it would appear as if if prejudgment interest is appropriate i think that the court has hit upon it that there's there's no doubt the left bank and vacancy were covered perils under the policy and you can find that they're covered hills under the policy by the  policy which if you look at that none of those even come close to a pile of plans so when you're an enterprising i fast and vandalism cover cause of loss under the policy that they are ok now we move to the standard actually i'll call it more d g provisions because there's a number of provisions under the mortgage mortgage the provisions and what they're trying to do in their brief is they take one of the mor buildings or structures to each mortgage holders shown in the declarations in order their presence as their interest may appear now that clearly was and is actually specifically looked at the same argument that they're making in their brief pause so that the bank doesn't have to buy a separate policy and these things have been around when you look at the cases and eight hundred fifty they've got these clauses and under that law is this really path the language that says that if  ok there's coverage for that sixth period so that case directly addressed that issue in that case directly held that there's coverage that sixty some of these section of this policy there was even coverage for the insured so have this l is i was looking through i'm sorry just as is correct that the rate of authority that i have seen around the country pretty much indicates that the wisconsin case that they rely upon night watchman and not a night watchman employee somebody that came in and checked on the property none of this was disputed below if they had electricity hookups and and if they kept its machinery operating so the property mortgage decisions and ellen the way there is around the country i'm familiar with the case that councils talking about in minnesota where the municipal sort of supreme court had a prior opinion that on the stand mortgage clause that acts of the insured embrace any act of the insured whether it's related to the policy or not i saw since similar case or it's in my brief but i electricity is hope relevant is the vacancy provision requires that the less you the sub leslie must conduct customary operations and the same applies to the building or and there's no question of these facts no one  interest was properly a word the whole business about and they start their brief our work the banks going to get paid by somebody else has played to this case from the get go the bank hasn't gotten paid by anybody else other than what they've already received credit for they receive credit for the sale of billing they receive credit that amounts of money they get paid they receive credit over the clatter all that's been liquidated all it judge mitchell gave  this is a different between a final judgment and an appealable of the forcible judgment and a final one is what this one was it determined all the race between the bank and careless and there were other parties in the case and other claims against other parties it wasn't the is a cover cause of was under certain circumstances and the policy that you don't need to analyze it but the language here is specific it says covered loss and the vacancy clause makes language of the policy says we will not pay even if they are current lawsuits so you can hear them both ways you can't you can't say that they are not covered losses say we will not pay even if they are covered losses i don't think there's an inconsistency here because it's not the same coverage because of loss here it's same covered loss and when it says even if they are covered losses under the they can see provision that's to reinforce to the policy holder that while vandalism or thought are covered losses in that when the properties condition is that it's a vacant for more than agree with me that if it would be a big difference who was in the exclusion section or posse would be a big if right i don't i don't see that it has to be in there because if this is proper and just what the exclusion is it is saying that they must establish cover loss or damage first and they can't and there is authority there's a number of cases that we cited that talk about the mortgage clause and say that it cannot be expanded not in the bay conceivable situation but it cannot be expanded to create coverage where the underlying policy does not afford coverage and that's the general motors case that's the western leasing case and that's even the vision case that the seven circuit cited here where the underlying where the insurance company did not have to pay for loss or damage because it was never covered under the policy in the first my question i do first of all some products the first policy this policy was in effect for a whole year before and it was renewed the bank was not listed as a mortgagee the second time the policy was issued the bank was not listed as a mortgage and it was during the policy term that they asked to be added somebody from the collateral apartment asked to add them as a party so this loss was never covered for theft and vandalism and the bank's interest was not added intel into the terms of the second policy and there was no act of the insurer that took it out and i want to go back to a question about illinois authority judge aspen addresses the issue of that the morgan g q are the mortgagee under the mortgage holder clause could not have coverage greater than what the policy holder has and that's what the potomac case stands for and that's the proposition that we're trying to say yes this court to enforce and eleanor it makes no sense that the bank can't get coverage for something that the policyholder never pray premium for that the insurance company never agreed to