defense costs for the fire at the refinery at the barrel premises that occurred you know in two thousand and twelve we believe you have to enforce the alienated premises coverage indorsement that endorsement your is pretty much dispositive of this case it makes our case different than all of the other cases that have been cited both by the other side as well by liberty as well as the courts characterization below of the unique our case was the co was relevant to the resolution of this case we believe your honor that what you have to do in insurance covers cases you knows all the rules and can insurance coverage construction ambiguity should be resolved in favor of the policy holder if there is one or two reasonable interpretations the policyholder prevails indorsements prevail over general provisions in a policy you can't have a loser ie coverage and by seconds it's a breach of contract case and it doesn't matter for two reasons one the alienated premise is indorsement coverage that allowed for the sale of the refinery for murphy case in the trilogy the us open g case he said there was a specific type of contract in that case the insured contract which is a covered contract it was long as you have property damage that results from that occurrence so you know he himself recognized that there were certain specific in those were his words pacific types of contracts that allow there to be coverage if the rest of the insurance policy applies here we have another specific type of contract the ended premises the sale of that we find remember we used to that used to be an excluded of big per se we wouldn't be here today if if liberty hadn't changed the policy that turn  st party property in the rd party property how did the property get from murphy to where my contract we had using common sense but since that is a covered proposition that part that is that kind of contract is a carve out and is no different than in short the insured contract that was at issue in the us and what do we do with the fact that the way arkansas views that and i think this is a different way different than maybe perhaps some other states in the circuit view it as a sequential process see a look at the initial grant of coverage then you look at the exclusions and then you look at the exceptions and the unit guard and some of the other cases that judge brooks relied to go on that initial grant of coverage they say that this is just not covered and therefore the exclusions and the exceptions simply don't matter a whole lot because you can't bring something within that initial grant of coverage through through that mechanism w the air need premise coverage indorsement you have to read it carefully it's turned something it is it does make damage to sold property part of the insur because you have to read that you have to read the exclusion carefully it's now say property damage to premises that were sold is now a covered event unless and then you get the exclusionary part of the endorsement that says unless the hazard was known or should have been known at the time of the sale but you're still talking in terms of exclusions and i understand that your argument is that this exclusion puts it in the initial grant of coverage but the problem i have is that's not how arkansas seems to approach it and you can argue that maybe arkansas should approach it differently or we should interpret but that's not i don't think how arkansas does it i think i disagree that because i have to read you have to do two things you have to look at the table of contents in the liberty mutual policy the have an accident yeah we have a we have an accident we have a fire that occurred at the refinery that's a covered event in the st instance now that's what the that's what the policy sense that you know that that's what the endorsement did so it doesn't turn the answer there is yes we have an accident the explosion those the policy now cover that the answer is yes so you're absolutely right that you have to if you go down that logic path we fit you know we fit the model and let look at it other words that's active it's now providing new coverage what are the u s and say how the council i think you're mixing the words the top the bases indorsement changes the policy yes but the you misquoted it says this endorsement modifies insurance party property that was part of the old operative's solution it's now moving it to well it's said the final word is the word park p a r t yes i think that means all the c g o form what's called form back on page one of sixteen i don't know what to call it but the front page of the si g l coverage it uses the word part of p a r t yeah ok does that refer back to page one of what's called a warm back there it  of limitations run on that tort if they had brought a tort claim but as we as we point out that's that question is a red herring because remember the asset purchase agreement said they could only bring a claim under the asset for the we don't know what boleros watch because they didn't want to say that they had anything to do with it so it so everything occurred but the more important your question in our case that having a breach of contract is ok because the was because the lease agreement was neither provided for nor anticipated by the liability policy at issue if you look at this indorsement paragraph two of the damage to property exclusion is replaced by the following it specifically settlers that it modifies the insurance provided that's what makes our case deplete liberty knew full well it sold this policy that game had changed you now had a whole different defined risk that you did not have in unit guard and it was specific early provided for anticipated that is the unique our language pace or perform acts or services covered and less explicitly provided under supplementary payments counsel's argument entirely is that an exception of one exception to one exclusion somehow creation new coverage when this part of the insuring grandmother x x presley states that nothing creates any duty other that in this insurance part aside from supplementary payments and so the as counsel of the freely admitted to the court we wouldn't be here but for this alienated premises exception  argument he's essentially conceding that there is no coverage under this ordinary insurance policy under arkansas law strasse was going out so his entire argument is that by modifying a particular exclusion and changing an exception to that exclusion all other exclusions are gong and the insurance coverage part is matter and as judge brooks noted i think correctly that the facts are other than a lease involved there versus the sale involved here the facts are virtually identical it's murphy oil even as a matter of coincidences involved as the insured making some of the similar types of arguments that they made there which was well there's no currents lurking in the background there's property damage lurking in the background but the fact remains that what they cannot escape is that the claim was a contract claim for economic loss arkansas has made a very clear brock's as a companion claim to the contract claim during that during the statute of limitations then the insurance company would have a duty to fact probably that would your honor there are two things that stop it here and we don't really enjoy age and what could have happened in the past what didn't happen spiritual were what they would like you today that could be a never ending series of imaginative arguments and i'm sure mr show or come up with a lot of them if we could do that travel back in time and say well what if they were different facts and what if this i agree but i'm trying to understand exactly exactly what the bounds of arkansas law are and it seems to me that i think the argument you're making you're on the other thing as you know guard and they noticed they said look there really does look like there's an occurrence here maybe it happened which would be the fire really looks like property damage right abstracts that's happened because there's property burn down which suicide thing we have but the key here is this is a liability insurance policy so the question is what is the liability and you have to look at that issue st and a k the question of what is this is sure and murphy oil being sued for they're not being sued for property damage as a result of an accident they are being sued for breach of a contract under the a p a and in fact there are two reasons why they didn't bring any tort claim one as a matter of fact special limitations has run in murphy even the knowledge that it has for that out themselves the statute of limitations has run out on any door claim but secondly the agreement that they entered into with the lira with which we had nothing to do and didn't have any knowledge of and they heavily negotiated allocated all these risks between themselves and the layer of stated that the press and only remedy is to sue us and contract in the state of new york and the southern division it's important part any claim arising out of this agreement shall be deemed to have arisen from a transaction of business in the state of new york so another again this is a claim for a business transaction breach of a business contract not a claim for property damage recovery because of an accident the fact that there was an accident involved somewhere doesn't matter in fact murphy itself even made that statement in new york murphy state said this is it pinned to page seventy nine in a reply brief murphy oil made the following statement which is pretty pertinent here quote the fact that a fire occurred and caused damage to the refinery is irrelevant to the question of whether murphy materially breached the a that case is all that liability that we're having to confront year is all about whether murphy breached the a p i did they materially breach that contract and they are seeking economic losses for that breach they are not seeking to recover property damage as a result of an  the control unit or case there is a there is an exclusion that directly controls hearing excludes this loss which is the contractual liability exclusion and that exclusion only has t contract exception what's your answer to that they asked that question is they would not have been a live virus in the contract because it's not a question about could have been liable under some hypothetical faxes would they have been liable and they would not because of two reasons the a p a prohibits any other remedy one of these murphy did to its credit when it engage in the agreement with the sell you this you have no other remedy against us we have no liability except for under this a p a agreement we don't have any tort liability but the little can't alter the terms of the contract between liberty liability asserting as murphy is purely contractual and secondly the statue of limitations ran anyway and i mean we're talking about some pretty good law firms brain cases i don't think they just sat around and let statue of limitations run out i think they they realize this is a contract claim we have that's what we're making as a contract line for economic loss which in arkansas law the in a garden court and then later in and i'm sorry and arkansas arkansas yes the  but it just says that exclusions only decrease coverage they cannot increase coverage which is what mr schulman's argument is his argument is that an exception inside an exclusion somehow increases overall coverage it doesn't do that what it does is it restores excluded coverage but you have to have coverage in the st place an order to do that generally indorsement doesn't cover just it depends on what the endorsement is about your honor but it can be in this case what it is the only thing it does in this case with the l a native premises exclusion is it alters the exception to that exclusion only does not eliminate other explosions if that were the case if it did you would be talking about potential elimination of the expats or the intended exclusion terrorism whatever other exclusions are out there you would be looking at those and say well i must if they somehow don't conform to this alienated premises fact pattern they must all be gone to us not how it's not how the insurance policy is to be are no further questions your honor i do have one that i did i don't know the answer to we have a couple of our faces are back to pleading state you don't clean causes of actions or give notice you feed you plead facts this is not a get out of last case they are completely misrepresented what economic loss means economic loss means there is no rd party property damage period that means there is only damaged to your work or something that was yours your product for example the alienated premises exclude indorsement made the refinery rd party property the twenty five million dollars that boy arrows seeking is to pay for rd party property damage those are not economic losses they are completely misrepresenting that term as it's used in in the law and in basically tort law could there have been a tort claim the answer is could there be allegations of a tort claim the answer is yes the barrow complaint is all about allegations of tort claims it's all about what happened this is not a breach of contract claim the but for cause every case we cited gives eight cases all say the misrepresentation did not cause this is an accident that the explosion of the pipe takes all takes is so much different than specific specific performance in the unit guard case the fact that the stats limitations may or may not have run is not the question the question is d