as a court observed i represents folks plumbing and that is one of three the pellets in this case and the other two opponents have agreed that i will give the arguments for all three appellants as the court is where the key issue in this case is whether there is a complete waiver of subrogation in a construction contract that was entered in t starlost whether there's a complete waiver of subrogation let me just ask you a question do you do you represent an insurer for these appellant or are they hanging out without inch been paid by the insurance company ok but anyway so they get too deep into the subrogation waiver issue i want to ask you about their argument that the contract in these this agreement wasn't in the minutes of the school board approvals yet and i had only seen that issue before i in these mississippi supreme court cases from the last couple years wellness and k p m g really seem to be very strict cases i don't argument there was a there is a basic contract a two hour one and that it incorporates by reference the general conditions that has a waiver subrogation as i understand the argument they're not contending that the base contract that incorporates the reference is not perfect in fact we have a letter from tom hood in the record paid for that was the county's attorney say and we approved it right but the minute say all i see is there was a motion to accept the bid from sullivan enterprises for the one nine hundred thirty five window restoration project it goes on a few more sentences it doesn't discuss any of these the provisions context within the modern day reasoning is that when you have a construction contract it incorporates a reference a lot of things all the plant specifications that might be very very many that when our guy went out there and did some soldering the flame just went everywhere in about thirty seconds and we play it in our answer that was due to the cellulose not being treated its own newspaper so one like he  and the answer is essentially two things it is that there were it was not we didn't bring in the general conditions of the contract which were incorporated reference and that they had some person dr betsy columns and tommy philips who said they did not remember that specific provision being incorporated by reference way with the fact that they had attorney tom could who's now deceased and just by reference s attorney general jim hood this dad has some members of the court probably already know and t say that the attorney general's father didn't know about this incorporation reference is a little bit ludicrous i think not only that it shows that in the base contract pursu they file their response and then to maybe for the first time they raise this issue and i think that's why a judge of the judge missed it on the first shot because we did name it was allowed great because of christmas between their brief and our brief over christmas break and shortly after that we get an opinion that would look like the judge is clerk and not even looked at our clock rate because he didn't under policies separate from those ensuring this project that's exactly what we're talking about then it says that the owner shy away all right in court an and this is what the district court said there wasn't a policy separate from the one ensuring the project there was just a policy that covered everything seems to be if you look at the cases that have followed the approach you're advocating for like the supreme court case they don't say eleven point three point five actually applies to this situation what they say is it it informs how the rest of in the contract including eleven point three seven should be interpreted because it shows that if you do have that separate out policy then you get that type of waiver but but you're saying they're just using your position is different than the cases you're relying on in trying to say that eleven point three five  the liberty mutual i thought they had a policy that ensured any fire damage policy in question in this it insured any this popping and other properties possibly terms of eleven point three point seven so the most you can say is that you go back to eleven point three point seven in terms of subjugation and that's what  and that's i think that's the best argument and to me it's clear in this way if five have a will and i say i leave all my property to my wife and it does not have  this subsection she gets everything i say while you're not embracing eleven point three or at least focusing on it because majority approach to that provision is to say it's a full waiver if the insurance policy covers everything because the language says or other property insurance the political will to the work and if the insurance of political to the work which in this case covers everything then there is a full full wave and that's that's the majority approach give us the majority approach exactly what yonder said it says that if you don't have a complete waiver then you've just done away with the whole purpose of the waiver fabrication which is to moment to put in context carl logically why we're here before this court now from the lower court is very early in the case of scheduling order as mr lawrence said where the waiver of subrogation provision was filed a motion for partial summary judgment and opposition brief it makes the incorporation argument but i don't see where it relied on this minutes rule or cited the relevant body teachin call aspecific really minute rule what we cited in the opposition brief was that mississippi i'm sorry the normal rule is that a reply brief is too late to raise something and you're talking about even one step further with the sir replied but we were given leave by the court to address the issues that they had raised in their reply and right into but then you're raising a whole new challenge incorporated with we believe that was there are but eight to one was never attached to the minutes nor was it ever spread upon the minutes and under the mississipi minutes rule clearly less it spread upon the minutes of the term that you know you have an employment contract if the minutes just say we have an employment contract and don't say the salary is x that you can't enforce that salary at that let alone with reference it's and that's as it has a couple of the different burden to make sure that the minute rule is complied is on the private party seeking to enforce the contract and in this case a private parties were sullivan and sub contractors that failed to comply with the  to say we waive liberty mutual is weighed this issue are all appeals from final judgments where the jurisdictional issue is very different where cross appeal is unnecessary here this issue was brief it was addressed by the district court you kind of put your finger on one of the questions you asked the key provision they're relying upon as eleven point three point five and what that in compazine even the cases they say in support all in five involve two policy situation because what eleven three point five says is the waiver will apply if there's a separate policy covering the non work for property adjacent to or at the site but not the work policy that responded to the damage sustained by chickasaw was a liberty mutual policy it's a single policy case all the damage both nine work and work are covered by the liberty mutual policy it's our position is supported by the wilkinson that had a very substantial identical provision as eleven three eleven point three eight point seven they argue well it didn't have eleven three point five but that's irrelevant because eleven point three point five isn't trigger that's a correct decision because it said eleven point three point five is triggered because there were two policies involved in that in the breast of supreme court case even the case that i just said it informed eleven point three seven but a look back at it but what and that's the distinguishing factor so what we have here we have a single policy covering both nonwork and work and clearly what the district court said list correctly said eleven point three point five is irrelevant to this analysis because the only policy here that responded to all the damage was the liberty mutual policy and therefore i think i am a little going three point five i see that but i thought with the nebraska which is interpreting eleven point three point seven it doesn't make sense to say if you have two separate policies one just for the project and one for the other stuff that you'd be able to have a full waiver but if you have in your case one policy that covers everything it's right the end of the day it's the same insurance so why shouldn't you have the same result of the full waiver  looks at that's not the way eleven point three point seven really says that the waiver will always need to damage to the work but interesting they really jordy of course have disagreed should we start given how much division there is in the state courts that have looked at this i think you'll at least concede that should we certify this to the mississippi supreme court i don't believe that's necessary because this to me is not a public policy issue this is a matter of straight contract interpretation and it's just reading the two provisions and holding as the district court you asked me to take the minority say mississippi would follow what every court calls the minority interpretation except i don't think it's a question of majority versus a minority it's a question of just looking at the contract for yeah but if you had a regular lawsuit and the contractor had caused all the damage and of course we don't know the cause here but if that if that was the case then the contractor would be liable for everything right and this insurance this waiver switches that if interpreted as you say but and i agree but it's nothing policy case eleven point three point seven is the only provision the only way subrogation as to the damage to the work and also then says what about the provisions with regard to the contractors requirement to get liability policy if you if you if you will there's a complete waiver then you know essentially all of all i just need you to centrally nullify those provisions that require the contractors to get liability insurance to cover their liability to other property so i mean by by complete by that is limited to the work then the cut then the other policy no reason for them to have liability insurer they can still get sued if if your insurance coverage from your client won't cover the whole loss i mean there's nothing that prevents the contractor from still being sued for additional damages  read the contract as a whole and try to give meaning to all the provisions in any unified way and that's why they said and it's our position that eleven point three point five is and just like this court has found consider even though there was an eleven twenty five there was work there was damage to the work that was damage to the nonwork and what this court in that unpublished opinion decided was eleven point three point seven the comparable position was only provided a play support would like to address briefly the issue about the contract itself was not appropriate and end our briefing initial briefing and the record on page four fifty six we that they file suit against zurich to recover money from zurich and that there's also in the record that they did enter into a settlement with zurich liberty mutual da opposing counsel that you look at the whole context of this to say what the intent wise so you got a waiver a complete waiver in the contract between the architect and the school without reservation and it says releases contractors sub contractors everybody and then in addition to that in the general conditions that we talk about there's a w clearer understanding of all this is waiver waiver waiver and i agree with the court here that they're going to try and go off on the words with  seven which did not have the provision thirteen point five and the judge kind of got up if you read their briefs initially their briefs say th published decision it said that there was actually a variance in the contract and i think that's kate there was a letter from the general contractor that knesset said ok you take out this insurance policy to cover work and then you have your homeowner's policy that covers everything else and it's said that  the court of the quote is that buried that insurance responsibilities of the parties from those documents in the contract time is up yonder all right thank you very much this is the last