boarded two thousand and fifteen claims simply because they're similar to a single two thousand and fourteen claims that r c i asserts was reportedly consider this if the situation was reverse i would not argue that there was coverage for dozens of late reported claims simply because they were similar to a single tiny reported claim but that is the clear implication of our supplies argument because r is who i would not extend coverage to dozens of little claims on the basis of their relationship to a single timely reported claim arceo i should not be allowed to ny coverage here for dozens of time we reported two thousand and fifteen  coverage for that as well you would submit that we are entitled to coverage for the two thousand and fourteen claims however will acknowledge that the tax no texas court has decided this issue by it and many other courts from other jurisdictions have decided where one claim is made under one policy period and then reported under a subsequent policy period that there are seamless coverage for so long as the policies are identical new law no i cannot receive so the lower court erred by assuming that the single claim provision meant that if a two thousand and fourteen claim was not covered to the late notice then the timely reported two thousand and fifteen claims are also not covered this is sumption is incorrect for at least two reasons first it ignores the plain language of the policy specifically  the policies allocation provision the allocation provision acknowledges that a single claim can contain both covered parts and uncovered parts and requires that our supply ensure the covered parts applied address the allocation provision at all it does not respond to this argument furthermore none of our c lies cases address now education provision so those cases are distinguishable second the lower courts assumption is also contrary to the case law in attorneys insurance mutual of alabama for smith the alabama supreme court held that an insurance company could not use a single claim provision in an inner related period and then reported during a subsequent policy period and then you had a second claim that was both undeniably timely made and reported during the second policy period now there the insurance company tried to argue that using a single claim provision that the second claim was related to in a single claim with the first claim and that because the first claim was late the second claim also must be denied coverage controlling here are particularly persuasive here so really well first castors controlling this is an intermediate texas decision and this court has held that those are controlling cases but unless we decide it would that the texas supreme court would decide of the work exactly except for you know find it to be consistent with what we think the general approach is of the texas supreme or something would have to give us a counter indication yes exactly and here  essentially there was two petitions for for the supreme court to hear this decision the supreme court declined both so there's no indication that the supreme court would reverse cast start it appears to have  considered the case and decided to leave it alone but as to why it's directly on point i know that a bed r c i has asserted that there's a different set of says that it didn't just deny coverage for the two thousand and fifteen claims and you know based on the relationship to the two thousand and fourteen claims but because the two thousand and fourteen claim was reported late i think this misses the point entirely world link sought coverage under the two thousand and fifteen policy and r c u i did indeed deny coverage under the two thousand and fifteen policy these policies aren't interchangeable there's different policy limits and and  you had a claim that was made in a prior policy period and then you have a second claim that was made during the a blip policy period and guest star held that you could not really back that claim in the political policy period to a prior time because of a conflict between the inner related this condition and and the prior litigation indorsement it's the same thing here the prior litigation dorson it says that you can't relate back to the two thousand and fifteen claims to the two thousand and fourteen claims so if the two thousand and fifteen claims stay in the two thousand and fifteen policy then late notice or whatever arguments  point to return to the argument i hope i answered your question but i will attempt to explain it further my previous two arguments about the allocation provision and and the alabama supreme court case addressed the lower courts incorrect assumption that if the two thousand and fourteen claims and the two thousand and fifteen claims were single claim the two thousand and fifteen claims must take on the same coverage status as a two thousand and fourteen cla prevents our squire from using the in relatedness condition to treat the timely reported two thousand and fifteen claims and the two thousand and fourteen claims as a single claim made under the two thousand and fourteen policy now the parties have dedicated considerable space in their briefing to church dressing that asked our case we would direct the court to that briefing especially on pages seven to eleven of the reply brief which shows in chart form the similarities between this case case and if you review those that shirt it shows that there are no material distinctions between this case and the caster case but in short the essential holding of gas stars that when parties agree by a prior litigation endorsement that new claims do not relate back to claims filed in previous policy periods an insurance company cannot use an inner relatedness condition in the policy form as an inroad around that agreement the specific negotiated endorsement must control over the general condition policy  i'm finally i would suggest that the lower court's decision norse basic notions of fairness and equity but these principles matter are c library only admits that it was in no way harmed or prejudiced by the timing of notice for the two thousand and fourteen claim which came during an identical renewal policy yet r c i seeks to deny coverage not only for the two thousand and fourteen claim but also for dozens of timely reported two thousand and fifteen claims this trickery and result isn't required by the policy language or the case law and as a matter of policy it doesn't really make much sense to deny coverage for dozens of timely reported claims on the basis of late notice so with that we would respectfully request that your honour's reverse the lower court and find coverage for the time and part of two thousand and fifteen claims so unless you have any additional questions for me i see the remaining time in my opening back to the court reserving five minutes from a bottle parties spend a great deal of time briefing the parties to the facts of this case is star held that an exclusion in the policy could be used to create coverage by essentially reading out the interrelated claims provision in the insurance policy that was it issued in order to create coverage the court decision held the thing in a related claims provision did not apply hard to find average has no application it cannot be used to undo the correct coverage position  and that's what would happen because our trust position was correct but that the court would have to apply the exclusion in order to create coverage which this court has repeatedly held it cannot   sixty day reporting period ended texas law it's clear that in a claims made in reporting context that the reporting requirements are essential to coverage of this court is also held the same thing and because the claim was a timely reported it's simply not covered are sure i doesn't have to show that it was prejudice that's also been made clear by this court and the texas supreme court so the land claim does not  argument that's been raised that somehow there's a seamless coverage because our show of renewed the policy no texas court has held that such a such an argument can even be made or that cl exist the one of the cases they've cited the tessy decision from alabama has been roundly criticized by almost every court that has considered it because the court did not follow the policy going which the court ignored the raised for the first time appealed it was never addressed in the summary judgment briefing it simply has no application here the reason why we did not respond to that argument in our response because the allocation clause has no application the allocation clause is used in situations in which there is a claim and there is covered damages and uncover damages are covered causes of action and uncovered causes of action and under that provision are sure i am insured are supposed to work together to try to allocate the loss here our position is the entire claim is not covered because the two thousand and fifteen claim and the land claim are one claim and it was a time we reported there is simply nothing to allocate because the entire claim is not covered and then on the fairness and equity argument i understand that the result seems harsh but it's consistent with the policy language the the burkes court which we cited in our brief is the fourteenth district court of appeals case sometimes it works in favor of the insured i disagree with the guest star court that it is an exclusion it's a it's a condition in the policy now sometimes it may act as an exclusion like it didn't just offer but the provision is meant to aggregate claims together which can benefit the carrier or it can benefit the insurer for instance in a situation where there are large pretensions per claim if their claims are batch coverage for those claims is because our show added indorsement to include coverage for those claims that indorsement is subject to a five hundred thousand dollar per claim retention and not in the underlying case i will i will admit that rolling argued that that endorsement didn't apply because there were more claims than just wage in our claims in the underlying disputes however if that were to apply they would worldling would have a five hundred thousand dollars per claim retention unless the interrelated claims provision applied again in that instance they cause would work in favor of the insured because it would batch all the claims together and they would only one written so i disagree that i understand that it's unfair in this context but the clause it's part of the opinion but it is what we have in front of us when reading conjunction with the insurer agreement condition c excludes from coverage a claim that is initially made during the policy period such as we have here if it is determined to be related to the facts or circumstances unlocking another claim prior to the policy period the court then goes on for a while and ends up saying because  brace all this i think we're stuck with cast over and that's what we need to apply here absent you showing us something the texas supreme court has indicated disagreement in some way with this kind of analysis so how is this really different if we're looking at one provision of the gast or whatever insurance company was policy that would provide coverage but because it related on another cause to a previous time period for which there was no coverage of the court call that inconsistent and refused to input to enforce it that way why is this really different the reason i don't believe it's different your  because it gets a star i think what the court in guess star was so troubled by was that the prior pending litigation exclusion and that policy had a day that was in two thousand was a year two thousand the first policy for the primary carrier didn't sept until two thousand and six so there was this six year window in fact the court referred to it as the coverage went and i think the court was troubled by the fact that you had this large space six years where the court essentially said by putting that date in the carrier was suggesting or indicating there could be coverage and then the insurers denied the claims that were filed within the relevant policy because they said the first claims occurred before the policy period but after two thousand and i believe that that was why the court putting what you just described their policies in force as written true the difference though is i claim was presented in that i claimed existed in the first star don't know where that the carriers could have done that whether they could have said it was like notice maybe there would have been a different outcome in guest star if that would have happened but let me ask you is not a fact so the provision you're talking about the genie is not an a long term approach for insurance policies and there are be some cases on it i would think that that would say we don't write it down the policy just because on one hand one provision would allow coverage but when you read another  conditions do that is correct or and that's that's what we have argued we did cite many cases most of them unfortunately from other jurisdictions that have so held one of the cases that we cited was the because it helps first there were claims made against the insured over a thirteen fourteen year period and the carrier had coverage for a very long period of time during that fourteen year period and like here that the claims were by different plaintiffs and asserted different claims but the court held they were all related and essentially batch them all back to the first two policies that the carrier issued so it's it is the case there are cases in texas that have upheld the inner relatedness provision again most of the time you get disputes on this provision because absent involved in some it's when it's either the insured is arguing that there's only one retention and the insurer wants to say no there's or deductible no there's a hundred inventing or how many claims or to limit such were the insured wants to say i get more than one limit and the carrier say no you're limited to the one policy and you only get the one women most of the cases that have dealt with this provision are in that context a little say that all the cases i've ever read on this provision it's in force is written and it's not written out of the policy like that is stark or are you making a star it seems to me an anomaly based on of not particularly unusual facts i would think  situations that predate coverage in similar situations of clay nj potential claims that arise during the if we were to agree with the plaintiff in this case when in fact you know i'm not asking for parade of horribles but just really what does that do to an in a related clause well in this context i understand it because stars out there and it was in the supreme court review i don't agree with the decision and i've been the main reason i don't agree with it is because the court truly did use an exclusion to create coverage that otherwise would not exist if that if the if the prior pending litigation exclusion wasn't in that policy then the court would have had to hold there was no coverage the only reason the court found there was coverage was because of the exclusion in the policy and i'm an insurance is what i did this of a new long time and i just i have a real problem with an exclusion being able to create coverage because as long as i've been doing this all the cases that i've read have said you can't create coverage there in exclusion but that's what the court i realize that it's on the books and the supreme court denied the petition but i simply think that reasoning is wrong that it's ours to apply unless it's a factually distinguishable situation which i believe we other questions i'll be happy to address them but you know i just think this is a situation that the district court judge's opinion is very well reasoned it was based on a very well reasoned opinion written by the magistrate judge an appropriate case to certify to the texas supreme court i'm asking you to ask her later i don't believe so your honor because this is this is a unique situation i'm not sure how much whether there's a lot of potential you know long term precedent for this i think this is a pretty limited fact pattern i think the court can just decided based on  the briefing in the summary judgment phase because the district court didn't even get to that argument so it's not part of the appeal but it i just wanted to point out that the way this works it's not always an one understand what the decision one way or the other mean to hear you say there's a wage an hour it's not exclusion it would be a it's no it actually wage an hour disputes are excluded under the policy  covered right because normally insurers the issue this kind of policies don't want to insure wage now or states so the only way you get coverage is third indorsement which are so i had heard of her way for only wage an hour there are other claims that are not wage in our claims therefore we get coverage under the general terms of the policy and that's only subject to a one time five hundred thousand dollar tension our position was no this is all wage an but let's suppose that the water sprinkling system came on every morning at eight o'clock and fifteen employees slipped and broke a hip on different days having another different crying their different planes but the inner related claims provision is so broadly written that it basically says if it's the same or similar cause of claims or cause of action that are made the same facts or certain they're all related there's an explosion that's every claim that comes out of that explosion is related well claims make coverage works is you're supposed to look at each you're looking at a window of time of the year and the kid what yours don't want is to have claims being made for ten years potentially triggering ten cl made policies so they put that clause in there in order to pull everything back into one particular coverage that's that's the reason for the pr because there weren't earlier policy periods or earlier policies in place at the time that the very first claims were made i'd like to submit that that's just simply inaccurate the proof is actually in the record periods in its decision was because it was really looking at the a political policy period just as we urge the court to look at the chief thousand and fifteen policy period and determine whether there is coverage there gas started the same they looked at the time period in which these claims were first made and determine whether there was coverage there or whether the coverage was at whether that claim needed to be related back to an earlier time period but i guess my point is the factual distinction they're trying to raise which is relied on and what not a certainty but the absence of that is what the district relied on that gas story isn't addressing what do you do under a night do that earlier policy that wasn't complied with but how does it affect read out of the policy that's inaccurate in gas start the interrelatedness condition aggregated all the claims that were made in a particular policy or together it just said that they could be related back to prior policy years but the same thing that we're arguing here so here the interrelatedness condition would act to aggregate the two thousand and fifteen claims together and the prior litigation exclusion which was modified specifically by indorsement would prevent them from going back and relating to the two thousand and fourteen claims no they are deemed to be under the two thousand and fifteen policy because that's the time in which those claims are first made and there's a prior litigation endorsement that stops them from relating back to two thousand and fourteen which is what period relates back and isn't covered under the under that policy and then you have a modification by endorsement and that's really the heart of gas start says that you can't if the parties  specifically agree that these claims should not relate back then the insurance company can't use something in the policy form that's just a boilerplate provision to say oh we're going to skirt that specific or there's  i want to go number to have orders at a different yes that is number ten yes so number ten is the is the exclusion and then there's a specific indorsement that i could i think the page is the claims that were made i think it was a two thousand and seven policy period they aggregated them together what gas star prevents you from doing is saying that all the claims that are made within that particular policy year then relate back to an earlier policy so that they're in really in this condition still applies for purposes of retention so one retention would apply to claims that are interrelated which would be the two thousand and fifteen claims it's still also applies for policy limits so only one five million dollar policy limit would apply for the two thousand and fifteen claims what we're saying is that get under gas are these two thousand and fifteen claims don't go back to two thousand and fourteen because of an endorsement yes because of the change made by endorsement precisely an endorsement of it is or is not number two i don't know this so that's interesting note number ten in the policy period is actually the original exclusion and then there is a separate indorsement that of that appears in the policy that modifies it thank you thank you and unless you have any other questions for me i know i've gone over my time but i thank you very much