novo our basic position is that the plain language of the subtle non agreement does not modify the continuing coverage provision of the insurance policy and i ask you a threshold question yes please and you address the issue honor for that question the subject matter jurisdiction with regard to the way i believe it was pled and with regard to the inquiry into it over a period of time was that there was complete it doesn't say what the basis of it doesn't say at what point in time and i mean this litigation's been going on for thirty five years for all we know from that allegation that was based on a representation in one thousand nine hundred and nine and given the complete diversity has to be established at the time of the filing of the complaint how does that suffice i respectfully i do think it suffices for this particular case there's been a long history in which that inquiry has been made and that representation has been made or repeated to the district court my recollection is not perfect that on this particular issue but my recollection is that that inquiry was made before we filed this complaint as well the district court has been satisfied with that and i believe i don't know if they really represented in front of the district court but that's the representation that's been made with regard to complete diversity so i think this court does have jurisdiction as well as the district court with regard to the appeal your honor that's the best i can do on that one the with regard to regard to the substance of the appeal in many cases the briefs are complicated the law is complicated in this case the briefs are not that complicated the law is not that complicated i refer to page ten of the reply brief where we simply repeat condition c or the continuing coverage provision and section seven d of the subtle men agreement which essentially contains the core of the entire argument with regard to this case the settlement agreement just scope it out for a moment this was not a policy buyback settlement agreement this was not a settlement agreement in which claims were the complaint was dismissed with prejudice and there was a general release and a payment this is settlement agreement involved certain claims being released it also involved a coverage in place agreement with regard to other claims so for example with regard to the a particular factual claim here of the morgan hill claim the coverage in place agreement was that there's a clear change to the deductible there's a clear change to the notice provision and then when you get to the change to allocation asserting that damage property damage loss is different than property damage for the right yes and in paragraph d to be kind of go through it paragraph d talks about begins with and your honor i always put it next to page ten on the reply brief to do the comparison but property damage losses related to pollution at real property and at any time by all and the property damage relating to any plea claim which is defined  it shall be allocated pro rata equal way and then there's a particular timeframe divot depending on which one you're talking about what it does not do your honor and if you compare it to the nd paragraph of condition c which is the continuing coverage paragraph the continuing coverage paragraph states that property damage is can if it is continuing at the time of the terminations of this policy the underwriters will continue to protect the assured or insured in respect of such property damage without payment of additional premiums so if you wanted to talk about liability you could have easily matched up the phrases if you will this with regard to this provision it only goes to the allocation of property damage your honor i think you probably are asking the question about a while you begin with losses or property damage look we're not ever going to be talking about property damage in isolation it always has to have losses associated with it because property damage for which there is no remediation would not be covered by the insurance policy in the st place so we're just tagging in to need you would need that weren't losses and all you through your saying were losses is redundant the word property damage losses i think just refers to there's economics associated with it then property damages rip furring to the factual allocation and then if you wanted to make this clear so that you were changing conditions c or the nd paragraph you would add another provision in the provision would say something like you are limiting coverage to that particular policy in that particular year as opposed to having continuing coverage so this does not match up in that in that sense your honor and that's what the plain language of the agreement is that actually syncs up very closely with regard to where the parties were at in the litigation the litigation with regard to these matters was essential to the litigation over when property damage began when property damage ended and how much property damage occurred in every year so for example in a previous appeal in trial niagara falls which is referenced in these briefs the big issue as there was an explosion and i and i agree falls in the mid one thousand nine hundred and fifty s so all of the property damage literally for the most part occurred during two years very big factual issues around when property damage would begin but then how you allocate it for purposes of liability is governed by the contract in most of the cases that we've had against london and other insurers have not involved had not involved conditions see or continuing coverage they had involved the several policies of london as opposed to the joint several policy that is part of conditions see so with respect t the st use of the word losses is just surplusage now i'm not saying it's surplus just saying it so you're saying property damage losses is distinguishable from property damage used elsewhere in that sentence yes exactly ok and property damage losses ties you into economics now your honor this particular provision seven dealing with then in the future right apply to both the policies of london that had condition c in it and it would apply to the policies of london that didn't have condition c in it so it was going to have to you know how the law would apply to property damage being allocated in this manner would be determined under the terms of the policies not the terms of this particular allocation and in fact your honor may i go on a minute and twenty two over the in fact your honor i think the district court's logic you know with all due respect to the district court was flawed in two fundamental respects one is the district court really failed to appreciate and take into consideration the fact that the settlement agreement was not a settlement agreement the settlement agreement was a coverage in place agreement with regard to morgan hill as to how that was going to go forward there was no intent to settle morgan hill in many other of the sites in this agreement so he misses that when he goes through and says you were just trying to get this over in fact we're you know the thirty four limit your litigation is continuing his point was that you were trying to resolve the issues that had been double the parties for thirty years and and establish clear rules that could be applied going forward i'm not sure what rides on whether this is a court of one settlement agreement or coverage agreement i think maybe more finally stated your honor by me or more precisely stated the issue that had been double the parties and had cost a lot of money was how do you factually allocate property damage that's what the trials were about with lots of expert testimony about that particular issue but ultimately that only matters for determining whether tha fact having factually allocated in that manner it's them covered correct absolutely and emic there but for that next question so at absolutely right your honor and that next question is then answered by the policies right and the policies are different some of them have conditions see some of them don't have conditions see at this particular moment in time right around the time that the settlement was going on london was engaged in vigorous litigation in delaware contending that the continuing coverage provision was actually a pro rata provision instead of the all sons provision that viking pomp all timidly found the nd big error your honour's with regard to the district court's logic was the district court basically reasons from things that happened in the future with regard to the party's intent in the past don't you ask us to do the same  own three post dates the room as well i really don't care i mean i read the briefs but our position our most fundamental position is you should look at the parties intent at the time the parties intent at the time is not conditioned by is not there's no reference if you will to anything with regard to how conditioned see that continuing coverage provision is going to be interpreted or not interpreted and in fact it's not even clear whether it'll become relevant in the future so that's why there's no focus i think on condition c at the time and what the settlement agreement does is it very clearly changes in very clearly changes the notice provision it very clearly changes the deductible and it does very clearly change allocation of property damage but it doesn't answer the next question which is how does that play out after you put the marble in the top of the thing and come out through the policy regime with  in the in the allocation agreement does not can control the allocation sees sixty one through sixty nine your honor i'm saying that condition property damage over a period of time so if you have a loss that holding my hands up is this wide it's equal division that was the whole point so that we wouldn't have to fight about the facts however once you get past that factual determination of allocation of property damage then how that works through the policy policy regime the law londons vigorously litigating these issues in delaware nobody knows where they'll come out fifty nine s and how dizzy and of the allocation work i think the allocation in the fifty nine policy by memory is several is several so it's basically i think the fifty nine dollars policy is limited to the years that particular year it's not until the sixty one dollars through sixty nine dollars policy is that it has this continuing coverage position which the court ultimately found in olymp three basically allowed you to go forward in time and sweep back and then in viking pump different case different clients different companies but the the court basically said that you can go backward and forward and four that is sufficient for purposes of the complaint filed in two thousand and eighteen is that correct or is it possible that the names would change between eighty four and and two thousand and eighteen i guess that's my question and then the names would not change they would determinations or it had to satisfy itself that there was actually complete diversity i mean doesn't it have to make that determination at the time of the filing i mean am i wrong in thinking looking at the docket it seems like there were no litigation about this action was settled in august th or th and it wasn't dismissed until after this one was filed so there was over overlap there but i think that's correct the district correctly ruled in this in this action that the allocation agreement requires that the lawsons be allocated pro rata equally over all of the periods of triggered policies which are those policies in fact during  the years of operation at the at the plant sites owned by own and in so ruling the district court correctly rejected on its premise that the settlement agreement somehow did not resolve the ultimate issue that the parties were litigating over for twenty five years and that is what is the lawsuits associated with the part of the policy and looking at that litigation history effectively looking at pearl evidence don't we have to st make a determination  original insurance contract the argument would be different because there'd be a conflict there and you have to figure out in the one contract which one controls but stepping back a bit under new york law pro rata allocation is a what they call a legal fiction because nowhere in the contracts does it say pro rata allocation and under qana the court of appeal said this is a legal fiction but this is the best way to do it absent other language that tells us how to allocate zero loss so now  in viking pump in two thousand and sixteen the court of appeals looked at the conditions see which is that other language that they rely on and they said well conditions he contemplates a loss and or damage taking place in more than one policy period so therefore it's allocation so pro rata allocation must step aside for policies that contain conditions see here it's different here but the parties didn't two thousand and nine was codified that legal fiction and it became an expressed term of a contract in two thousand and pro rata allocation no policy covers a loss that began during a particular policy period and continued after terminations of that period because that subsequent loss would be apportioned to the next policy period as it's pro rata share express wording of the allocation agreement clearly relates to the allocation of loss because it provides for property damage losses relating to pollution and property the only known to the property damage relating into to any pollution claim shall be allocated pro rata equally over the entire period of operations the clause does not say or and it does not treat allocation of loss and allocation of damage separately and under new york law pro rata allocation triggered policies pay the loss rate and the loss is what the damages in the particular policy period so in other words when this clause the reference to property damage in the last part of the sentence that's talking about and it is informing the the laws being allocated in the front part of the the clause and as the district court found in accordance with new york law read most naturally it requires that the losses be allocated pro rata over the period of operations at the sites and it's important to note that all in agrees that that's how that clause operates at least with regard to policies that don't contain condition c it's only when you get to a condition c policy do they say well now the allocation agreement is a factual question but that's not a reasonable reading and the real way we know that's not a reasonable reading is the settlement agreement specifically says the allocation agreement changes the policies going forward so what was a jury question was am it happened during the policy period well it only changes and only changes the policies to the extent it changes the policies that allocation agreement changes the policies and we know that means it doesn't just answer a factual question it answers a coverage question which is what is the loss attendant to th litigated over that issue heavily over the years but the one thing the parties didn't disagree on was that once a jury verdict came back with a percentage of damage in a given year neither own or london disputed that that percentage of damage is what th policy paid for and between twenty million fifty two thousand and eight there were no fewer than five rule fifty four b judgments injured before the district court and in each and every case the policy that were implicated paid that and they were attributed the loss of the property the damage that took place in that period and i see him over time but if i have no questions no other question thanks very much thank you martin you've got three minutes yes thank you your honor a couple of quick points point one is fundamentally this is a contract case the duty of contract interpretation of the rules are relatively clear you look at the four corners of the agreement to discern the intent so your honor with regard to the questions about parole evidence our our our answer would be different you look at the contract and the language of the contract you don't look at the whole litigation history that's parole you rely on the litigation history in your brief we do want to respond to the district courts to respond to what the district court did but fundamentally your honor this is a straight up contract case contract propositions should be the st rule of order if you well i'm not mistaken you cite cases in your brief for the proposition that where the question is whether it's  contract modifies a form or an earlier contract that there is you can liberally use perl evidence how do you square the argument you just made with the argument the i think what we're doing in the brief is we're essentially taking a look at a series of factors that you can take a look at with regard to contract modification and we stand by our brief but in terms of the fundamental way to look at this case it is to go to the four corners of the document and the language of the document there may be some other things that are helpful under that particular legal standard which really leads me to the next point in these contracts because you have two of them in front of you and that's why i go to page ten of the reply brief where they're next to each other the duty of the court is to write is to st try to reconcile those right to reconcile those provisions and see if you can come up with the meaning with regard to those provisions from the language that is used that very much parallels the contract modification of rules that are cited all over the briefs with respect to how a contract modification has to be clear and deliberate and sophisticated parties would clearly and deliberately change it so you know point one is focus on the contract point two is look at the contract modification with regard to the rd point that i want to make very briefly is with respect to the prior litigation going back in time the prior litigation is under the several policies of london and not so the focus of that litigation is with respect to w damage property damage and losses associated with it and liability is going to be limited to a particular policy your if that's what's at issue not until the niagara falls appeal do we get a lot of traction with respect to what how losses is defined and how it can be continuing and so forth continuing terms of passive passive spread and then finally i would just point out from a matter of logic london's argument with regard to contract interpretation actually depends on what happened in the future it actually depends on what the decisions the actual decision was in viking pomp and it depends on what the actual decision dollars so if you go through the analysis with regard to that argument and you stop the music at the time of the son of an agreement you come out with one result you go through according to them you go through and you stop the music with regard to only three words future liability being swept back you stop the music there and you come out with another result if you say if you can if i can pump and you say that's what the law is you stop the music there and you come out with another result which goes right back to the fundamental flaw of the district court with regard to logic and that is the notion that condition c automatically means joint and several is not known to the parties at all in two thousand at the time we're doing this agreement it's you know in fact in all in three the court of appeals the nd circuit court of appeals finds determines what condition c means for this policy and then and the new york supreme court corded well and they've got the highest body in the new york courts came out with it came out with a different ruling and then your honor you did ask a question with regard to the pollution exclusion and how that has been deemed to work with regard to this it's a prior decision of this court and the way it's been determined to work is that the last year the condition c was in the policies i believe is one thousand nine hundred and seventy at least for policies that we've litigated gap and insurance for one year somewhere there may have been your honor you in any event but in any event if if if in one thousand nine hundred and seventy right before the pollution exclusion came into effect there is damage that is continuing even though it continues past the time that the so called pollution exclusion starts getting traction in seventy one and seventy two the it is still swept back to that policy or under the contract that was a that was a different fight that we had at one point in these courts i have nothing further i want to answer any questions you have you do have the lawyer that's been involved in this for fifteen years not not not since before i was in law school that's a good client isn't it that's everybody drea well so thanks very much you really have a good day