good morning ours if that may please the court my name is michael wiggins i'm here for the talent diana carey trustee for the bankruptcy estate of we cook financial corporation from the outset i'd like to reserve five minutes of my time  an access which i think if i'm understanding where the court is going relates to the mutual mistake issue and that's where i'll begin my presentation the district court's order granting caliber ones motion for record that kronk in fact knew that the five hundred thousand dollars was a mistake what what what is undisputed is that w c s he contacted said renew the original policy including the five million dollar earthquake supplement on the same terms and conditions was also under skittles that crank for that caliber one same terms and conditions and the caliber one confirm that same terms and conditions so they are the courts reasoning that these four declarations i believe it was that they relied on that showed the the alone in the supplement was proof positive or created an obvious simple implication is the term the court point taking it from five million to five hundred thousand yes wrong and no problem mutual mistake is there any standard to the position has been taken upon which you lost even though crown didn't know it was them the state that knew of said five hundred thousand therefore your client must know you know that there's been a change and signed on to your argument is that you can or you can't just give half of crumps knowledge you can give of the five hundred thousand that knowledge but he also has to know that there's a mistake before it counts oh i think if the court w to track the district court's reasoning it doesn't seem like there would ever be a mutual mistake or that legal doctrine would be rent because any time someone contemplated or parties mutually intended a of my act or even understanding that there was no premium differential depending on the level of earthquake coverage the premium actually increased all of the relatively commercial policy that the b c s you have attained but already been added on in the at the five million dollar level so it existed in the first one correct correct and then when it dropped by hundred thousand to me or just the policy congress simply because it was an add on but if you look at some of the endorsements that we provided that were on the record it clearly states when added when you see added fry pretties to its to its portfolio as or there was an there was an increase  if if there had been a conscious decision to reduce coverage if the insurer intended for example that it no longer wanted to have a five million dollar risk would it have  says that if there are any in management or waivers to the policy those fact included in the horsemen and it was clear not just not just the policy but the course of performance of the parties suggests that any changes to the property policy were always accompanied by endorsement that would have been true on a renewal situation that there exactly because the insurance policy really is it's one contract it's it's more akin to an option than anything else and that the policy stays the same then you just the insurance company broker to be the expert in the insurance coverage trip through so presumably with was processing the renewal policy he was reading and presumably it would have been the ordinary course should have seen a differential between five million and five hundred thousand it may not zero in fact done with that part of its responsibility to make sure that caliber one of the other its desire to renew understand terms and conditions it came back there's this undisputed in the record that both parties were mistaken that they just didn't catch the error until after the earthquake actually occurred and  it's conceivable that the district courts sort of threw everything into the pot and said well what makes sense but what we're what we are concerned about here granted we have moved we have we have asked we have appealed the denial of our summary judgment motions but i'm limit and the closing documents were executed the purchaser not only received the purchaser produced a title commitment report aplenty title commitment and the survey that contained the actual that because it had that information in front of it that actually contained the accurate legal description that the purchaser was was not had constructive knowledge of the mistake that's not the case here the only only in the document that had the that had the correct policy when that was the original policy after that everything was a mistake unsolved when that was all five hundred thousand dollars after that what's interesting about that the nexus case also is that the court  those are two seemingly competing legal propositions and only way i actually get my head around that is that the court on the construct of knowledge base really relies on the fact that the purchaser and that she is actually saw the credits amount after the mistake was  what the only thing that evidence points to is the fact that once that mistake was made it was just perpetuated through the next renewal do you have to know that at the mistaken amount or do you have to know that that amount is mistaken and i think it's a very important distinction and i think the nexus would say that you have to know what's in the state you have to have for this construct of knowledge to apply you have to have something in front of you that tells you what the correct information and correct provision which say that just and it happened here and and i guess looking back at the court's order the court didn't make  constructive announcement constructive knowledge analysis it flat out said the obvious implication is that from a new there's nothing in the record to support that it did and that's why a motion for reconsideration is submitted is additional declarations because we didn't know that that was at the time of the summary judgment pleadings we didn't know that that was an issue with that at bar we understood the implication that there was yes he was bound by his agent's actions and sort of but we didn't know that it was going to be assume that crump knew was on them to show no genuine issues the fact that we would just present to the court today that there was at least a genuine issue of fact even if at the end of the day the fact finder of fact concluded that it was  to the extrinsic evidence than we do the actual term of the policy itself the policy of itself the language of the policy itself is evidence of what the policy means there was nothing in the policy itself that related t i v to the on the merits ice i don't understand how long how the district court came out on five percent of the district courts that it was is it doesn't make any sense to me and it may be five percent of loss is appropriate and i don't know how the district court could come to the conclusion  properties that doesn't that's not that doesn't show up anywhere in the policy that relationship it isn't in documents outside the insurance contract which is why the court had to find that the deductible was ambiguous the deductible involved in the very beginning if you look in the supplemental excerpts of record page one which number eighty one and in the supplemental excerpts of record you'll see that one thousand nine hundred ninety eight before the first policy was taken that said not only from calibers perspective that the earthquake coverage was not calculated into the premium therefore that any change in coverage would not reflect in the premium but it still with by its way  wise in this case it is appropriate to say gee you know we didn't pick up the five million to five hundred thousand you didn't pick it up and it didn't make any difference from our to propose to the insure it changed the total value of the properties insured it did not change the requested supplement for earthquake coverage of five hundred thousand resubmitted that on november twenty eighth two thousand which can be found that excerpt page one twenty one two one twenty two so if the time of x or one fourteen front of them is the iranians policy which you say hello everyone is responsible for so they put you into the chain of documentation a mistake and that mistake is the mistake and document is what from is looking at so what why would they know it was a mistake what shifted all of a sudden because they had to have the untapped to insure for five million dollars or the whole plane was crap was knowledgeable that they wanted the renewal on the same terms and conditions that appeared in the policy so you say they should have known five million same terms now we look at the coverage and we're going told to get the same level of coverage and what caliber one there was create an error in our point of reference which is really looking at it and so they are intending to get the same level of coverage i don't understand how somehow the caliber one's off the hook for creating a mistake which it itself  and actions undertaken by the principals only agent issuing certificates to third party representing that the earthquake limits for five hundred thousand dollars two of it's in the record issuing quotation seeking coverage for five hundred thousand dollars asking the coverage be balance on the two thousand two thousand one policy for five hundred thousand dollars receiving calibers confirmation of binder at five hundred thousand dollars that's what the district court had you mean ok that's a big difference in coverage for which the insurance company is required to pad reserves yes yes and i have have five five four and a half million dollar change would make a substantial difference to the insurance carrier on this particular policy but there was no indication of any change of practice on the insurance carriers and spite of this very substantial change in coverage we have to remember this is a commercial property policy that offers many many kinds of coverage earthquake coverage has one part general property loss is the vast majority of claims that hit in the chinese capital earthquakes  not drive the premium there's nothing in the record there's no declaration to prompt there's no declaration from an a church expert or an executive from the other company there's nothing ok so could we because of the time we address the deductible yes i'm sorry earthquake per occurrence ok so an occurrence to you know the occurrence is damage lost ok that's what i've suffered loss or damage that's what you know so i come to you and i say my building collapsed and i suffered seven million dollars in damages five percent cited seven million years three hundred fifty thousand dollars deductible ok exceeds the fifty thousand of them you owe me the balance over three hundred