one twenty one dash three thirteen let me give you a little background as i made i think in order to determine the applicability of a stack of limitation for a contractor insurance and the need to look at what the policy of insurance matter and did represent and sell pro se through the conclusion of the trial notice was given the first american title in in two thousand and thirteen and that's in the determine the language under the bill with a statute a limitation vege really at issue here is what does inception of the last option and so on to determine in order to determine what the law says i think you have to look at what the coverage is afforded by the policy and if you go directly to the policy and go to the expressed terms of the policy and if you look at section eight of the policy which is appendix page fifty seven of that section couple of different provisions first american argues extensively in their brief about a duty to defend there is no requirement that dr park tender the defense to first american and have them step in niger take the defense as suggested by first american in their brief if you look at the paragraph that maybe there's no duty that way but it may be the part of their argument which really wasn't fully developed zero knowledge that that by not getting noticed they were prejudiced and presumably if we'd gotten our own attorneys we could have won the case that we have before us now but no that would be relevant to that that specific provision of the policy it's you know that only really matters if the company is and this is again i'm quoting from section four if the company is prejudiced by the failure of the insured to furnish cooperation should be paragraph three is the notice again provided however that failure to notify the company shall in no case prejudice the rights of any insured under this policy and lest the company shall be prejudiced by the failure and then only to the extent of that and that's i was referring yes that it could be the failure to send to represent the type or part my be part of an argument that they were prejudiced but that's not really before so process let's go to the district the district courts logic was that the filing of the lawsuit created a cloud on the file yes correct and so one of that risk the title complaint contesting the contested ownership right correct and you know that as i understand what the district court that he said well that there's a there's a risk that's insured against called on market believe title not start the clock ticking well it doesn't start the clock ticking because of if you let me get to the provisions if i may i think that certainly would then star or give dr part the right under paragraph or upon written request by the insurer to request that they provide a defense of that action but it doesn't create liability because first you have you got to look at the entirety of the contract this is contract interpretation the exception off but that's not what this policy does again well it seems to me to the question and the answer both proceed under general liability insurance type of type insurance policies but this policy is a title insurance policy which andreessen additional days of when i started practicing law was basically a substitution for the examination of an abstract to satisfy yourself as to the status of title common but the nature of title insurance is quite different from general commercial generalized billeted policies where basically you're buying him partly to defend yourself inception of the lawsuit in order to determine the inception of the last you have to determine is determine what is covered under the policy now the coverage is the title is the assurance that the in the breach of title not breach of title but a but a claim with my claim under title policy is as you stated i can't find a single case if you go either way so this is a case of first your claim of cruise yes i don't understand what the words inception of and i don't know that abject those so anything else and that's the case i don't see why cases under different statute of limitation that don't have the language inception of wouldn't be relevant are there any cases under those i wondered i'm not aware i'd be i'm certainly happy to provide some go back and look into vice and supplemental already but i am not aware if  matters insured against by this policy and only to the extent herein described to you read that in conjunction with section eight which requires a final determination by the court in connection with section five which is approved of last approve of claim after the loss of a damaged that's got to be different than the notice under section three which is on section and so on you're not talking about insurance liability insurance of any type what you're talking about is  police the court good morning my name is mark morris i represent first american title insurance company my company insures title right out of that is a very good place to start your to make sure that timken oh that left because if he doesn't own it then we're not going to put our good money out to to have you buy it by those acres so i go i bitch doesn't own that land until a court says tempted which is not the owner of that land the presumption is under the warranty provisions of the deed whatever or whatever that he owns that land loss cannot be in clairton quarter declared until some court says it is hard to enterprises that owns this land rather than temp gauge correct know your honor why is that under this policy if you get word that judge hart is making a claim and cladding the title the judge didn't give a child on that property number one under section two you need to let us know immediately tell us now why because i want you want to clarify a very important thing under section four this romance kills correct the section four a says upon written request the title company will come in and  institute and prosecute any action or profit or proceeding or do any other act which in its opinion may be necessary to establish the title so by not giving my company time we notice that judge hart's was to clear title all on its own without getting a request to defend but it also could have gone to dr park and said under section six wells was pay off the loan balance i don't know how much money the lambs had paid dr park in the six intervening regardless of the by title action as long as the note is current and we have nothing in the record that i'm aware of about when the note went into default i would think that in itself as a side issue here why life and that that's the only provision you could have you can have a defamation protection in this insurance policy you can have all sorts of things you have a duty to defend and who knows what else you could have the only thing he seeking redress from you is on the indemnification clause and that claim did not accrue under the terms of the policy it seems to me until there was an appellate decision giving title depriving the borrower of title so to embrace that theory yes this court will sanction them someone who doesn't abide by their obligations to provide notice doesn't give the title insurance company the opportunity to go into found title before we ever get to writing check wouldn't preclude your defense to the claim under those provisions of the policy that say if you don't give us notice we're prejudiced by then we don't owe you a penny so your argument is a strong one but it doesn't go to the limitations period action claim it goes to your defense of failure of notice and resulting prejudice you that's clearly a problem for the title company when you're not notified and you might have a very good claim prejudice but that's not the issue here and so that begs the question when did this last begin what was it at what point was its inception right and so and what the policy says there's no you can't recover anything from us into there's no appellate terminations after a judgment denying you title that's what the policy says it does have to be written that way it could have been that you can not just indemnification but if if there's a flag on your title you can you can seek relief from us that this is you can't under that and then that policy provision but i'm really asking a question i know i'm not a in concrete is that probably sound let me know what's wrong with that what's wrong with that is that the utah legislature that your time to bring a claim against your insurance company begins at the exception of your loss and you've got three years to do it what lost dog in a parking lot that's covered by the policy the l among the covered rests and under section two of the policy are the very on marketability in title that just tempted us was talking about the beginning of the straw man skills argument that the title has been attacked is your strongest argument in your view that section six opportunity to settle a claim my strongest argument your honor is that under utah law under said that best actually starts running at the first instance when you're first aware of any laws now and i'm sorry and so in following through this court didn't even write an opinion when the appeal came up from that in  in that case what's bothering me here is i'm not aware of any statute limitation that starts to run before the plaintiff could file a claim that's recoverable and under the intensification terms of this policy he can file a claim until there's a judgement causing him to lose title he could file a claim under a different provision of the policy but he's not recovery there so you're asked you're saying there is that is there's a cloud on the title he needs to file suit because the limitation period starts running and yet you would at that be thrown out you have every right to throw out that plane and not just section seven which is a limitation of liability but the rights that the company bargained for here and the opportunities the department for to not write a check but six titles to make sure the judge t actually seven years one let me give you this scenario and see what's wrong i tried to settle a lot and certain representations have been made and i am dictating that concert in my office dictating but i may not want you to defend me so i reserve the right to say upon written request you show me i choose not to do it not yours that there's the third element make number the second provision the right to defend the right to seek defend become a sword rather than a shield because of the way you  s whatever reason i choose not to invoke that provision of my agreement why does that all of a sudden give you the right to rescind the the fundamental purpose of my agreement which does which is to seek indemnification i don't have the right to rescind that but you have an obligation to let me know what's going on because you might be prejudiced years that something's brewing that a loss has begun it might not be monetized i might get hit in an intersection walking outside the court here i don't know what my back surgery is going to cost for two years but my claim please give him sixty seconds thank you the fundamental issue here is a loss has to be a covered loss they don't insure against mere and marketability they insure against a loss of a right of the of the inn in this case the in indemnity and insurance is or in this case the lambs that they own the property that is where in the last occurred is when that was held to be invalid the arguments were section four and section six may go to their prejudice arguments of prejudice dr park it's the record is clear so dr park gave notice of two thousand and thirteen two years before the final determination of lack of the validity of the deed of trust there is nothing in the record as to first american doing anything to step up and say hey let us come let us institute this action let let us protect mark ability to let us do anything there's nothing about that if we sit down the definition of a market bill of title refers to an alleged noun or effect in title just so you know that seems to be lambs who are the trust or is under the deed of trust did not have the authority to grant the deed of trust on the property but again the policy you've got to look at the policy and what's covered section seven says actual and monetary loss with the mo allegation of an marketability dr park did not take advantage of that benefit under the policy what are you seeking in the primary purpose of the policy is the indemnity against the lamp not having the authority to grant a deed of trust