and with the last case of paul t home corporation versus take insurance company arguable way that coverage could apply then there's an obligation by the insurance company to feel that obligation continues from the time of tender until they can prove that there is no way that there is a defense o that didn't take place in this case the trial court relied on cases to talk about the duty to indemnify the duty to notify as much narrower it's also at the end of the litigation of the beginning situation we have a construction defect in california and other places is that the plaintiffs are not required to give much specificity the players are not required to give any type of information concerning when an occurrence took place for purposes of insurance company or insurance coverage the plaintiffs are not required to give much information other than a generalized statement that there is a violation of the standards associated with building that information is all that a developer my client has and at of which is the defendant here the issue there is that the have a pattern of denying hundreds of these tendons they have taken the position throughout the pendency of when they wrote these policies that they will never defend under raised here to the trucker that case and others for others have adjudicated that the additional sure indorsement provides complete operational coverage that it provides for a defense that it provides that the case spin presented as if the choice of law issue is directly before us and to terminate seven some fashion is that right why exactly i mean the original case the case in california  decided that x provision meant why i think in this contract right this contract has a choice of our profession and that shouldn't that is part of how you decide what x provision means and why contract i e what law you're looking at i don't really understand why we're going back to what choice of law issue rather than regarding it as part of the issue preclusion that was decided when it was decided that expiration means y thing that you seem to have bought into the notion that there is a separate choice of law question here  the choice of the issue with ink was wrongly decided by the trial court in that you seem to rely on the fact that my client moved from detroit where they'd been for many many years to at some point in time they were not a contracting party they were not one of the parties in the original agreement between the slip in the subcontractor and we think that is improperly broadly requires a defense whenever a complaint even arguably would know your coverage under a policy and i'm not sure  difference is of course enters a different level clatter will stop all requirements for california in georgia and as we said several times in our brief and before the trial court they would believe the law is co existed in both states is to do defend  you get to the duty defend which is you started out you start out by saying that's that's the issue here and it's not about indemnification but you have to be able to show that there was arguably there was coverage what's your best shot but that arguably there was coverage police and there are two different what's the difference if there is one of the complaint demonstrated there is property damage to property network done by the insured the insured being sub contractor so sell them the big stories and one can see that the insurer wanted to get to the georgia mall with this auto on arson surance case that's true and how does that fit into your argument well the autos owner's insurance case is not a claim for a defense as it started out talking t beginning they have allowed the trial court to go into a duty to indemnify which is what all owners about it also is not the case it talks about well main thing it does is it's a st party claim versus the rd party is the rd party claim and even though the defendant in this case tries to argue in their brief that this is a st party claim in that they say that my client seeking benefits under the policy which is a broad definition of st quarter claim but general contractor who is your client the the work in involved is their work i e the whole building as i understand it and not the work of the subcontractor does it make if in fact this if this case held definitively that when you have words that say x they mean why then how would there be a duty to defend because well because they don't know the facts of the that whatever was done was done by sub contractors and they worked on specific areas and so as to whatever a spin off impact that may have had it doesn't preclude your client all right but if this case is the opposite then it would apply to any reason fans unless there's some difference in the wording or some reason not to apply it here case i mean i should tell you that i find this a very strange interpretation but leaving that aside if that's what it says it goes against other decisions in that state so it's talks about the in georgia is much more broad factors actually i think more favorable to us in the california one because it says you're going to be bound by the citizens from out of state even if it's different law in california there seems to be a distinction why one  law to apply and that in earlier litigation the insurance company didn't assert that provision and it was litigated under california law and you won history and now you'd like to take advantage of that when i'm paraphrasing but this is my understanding so it's an invitation to correct me ga adopts a very similar standard to california which is that you need the identical issue in the st action in order for a ship and has it also have a law that says that if it's under a different state law now  isn't the same issue that if it's under the law of a different state in some vague way that that's not the same issue that specific question yes was was not addressed under under georgia law like it is in california ok but the i understand that part but still whenever you want her pretty contract you interpret everything in the contract including the question of what law applies now no not in this case your honour's why there were two reasons why the interpretation of paul t was was not found to apply by judge of the cult to the district court decision that's an issue in this case one was that the court the court of appeal and the trial court in pulte one was applying california law correct and the business risk exclusions under california law are interpreted differently i understand than under georgia law that was number one well that's not a reason that's just an observation and number two the trial court imposed he won and the court of appeal both made a factual finding that paul t had a reasonable expectation of completed operations coverage that is contrary to the factual findings that judge made in this case based upon the subcontracts that were at issue that all new acquired ongoing operations coverage against the city police does not include completed operations coverage the evidence relied upon by judge hough also included the deposition testimony from the pole to the person most qualified who testified that at the time these policies were issued pulte knew that some of that subcontractors in southern california how is that relevant to interpretation and sharpening the contract it's relevant to pulte is reasonable expectations and under georgia law a reasonable expectations of an insured are taken into account ok but i'm trying to understand how we get to georgia law where we have a prior california case interpret in this exact same professions let me bring aside the facts but at the legal interpretations of what they instance some very specific ways when i mean suppose for example you have a contract where a certain provision says whenever and since and then there's another provision which if you read it and paid attention to it might trump that meaning but nobody in the st case ever looks at th why isn't the choice of law provision in this policy exactly that the reason why it's not exactly that your honor that in the st case the court interpreted the provisions based upon california i know that is that she's asking why and she's asking why in my understanding i was trying to do this earlier my understanding the same contract same choice of law provision and your team didn't assert that provision and got a final judgment and that's what that saying so no i'd now can you do it if you could if you had a provision that said no matter what x provision says in the rule and in a certain circumstances why and that was never brought up in the st case so why are you free to bring it up now the reason why is that the audio owners versus construction case came out after the trial court now you want to that's that's that's why you want to bring it up now but she's asking a different question it can't be advantageous entered georgia law that's not your answer in order for georgia law to apply it has to be different than california law right so the st thing on the no that's not necessarily true in order for it to matter it has to be different but the the law of the state which as well as still wasn't litigated that you still didn't assert it at the time california starts by looking to the contract in a contract pointed to georgia and you didn't assert that it absolutely was not asserted in the trial court  i'm interrupting forgive me but are you saying now that had you asserted that it wouldn't have made a difference because at that time there wasn't a conflict correct correct so the auto owner's case was decided in september or october of two thousand and fifteen the trial regarding the reasonable expectations of pulte as to whether or not they would be receiving completed operations i thought reasonable expectations that's dr not subjective they depend on what the language of the policy says right  what's the difference what the contracting parties knew about the surrounding circumstances of why they were buying this policy not anot policy the reason why it's important or honor is that the trial court in pulte won and the court of appeals found that because paul t had expected to receive completed operations coverage based upon what was required in the sub contracts that it was relevant for purposes of interpretation of whether or not those additional insured indorsements provided that coverage bears on the question is it isn't that but isn't of their subjective understanding not part of the so so getting back to then to judge bears on the question isn't it the question of what an objective understanding a weapon contract means and you seem to be speaking and repeating that that there were findings of fact made about the subjective understand it's an determination based upon all the facts that were present under the circumstances and so although it's a objective determination you still have to look at what facts the parties were dealing with at the time that the contracts were entered into and in this case the additional rain stirred you were sent your time is running down do you want to talk about the specific provisions briefly ok so the specific provisions at issue in this case only provided additional insured property damage that occurred during the policy period that arose from the sub contractors ongoing operations is unfair to question under that st provision well no you because that provision provides that cold feet and it's in the record the supplemental excerpt at page thirty five provides that pulte is an additional insured but only with respect to discuss how the property damage occurred except to say it's from the original construction so it's possible that it arose from the ongoing operations that the liability arose and i guess up on the carl woodward th circuit decision found that the why ability with respect to these construction defect actions izzie completed operations it's not a liability that arises out of to construct right yes and because of that flood and there's buckling in the foundation and maybe that occurs at that time too but the people who buy the house don't realize that and then when they buy it they find it out so why isn't that coming from the ongoing operations and if it's as the result of the completion of the house and those defects and damages  every defective condition arises out of the work struction that was done correctly and so by by by trying to apply but for causation you're essentially collapsed scene ongoing completed operations to mean operations versus ongoing operations right ok in your position on this is in order for there to be coverage there has to be what in order for there to be coverage the liability has to rise while the work is ongoing that's what this court found in evanston st says westchester fire well wait a minute so that means there has to be property damage current is property damage so you actually have to have so if a contractor let's make our subcontractor somebody who's doing wiring and they do some wiring and they don't do it very well and it lasts for a while but but but later on after the home is completed there's a fire correct so and so there wasn't proper t damage until there's a fire so that was an occurrence until there's a operations because the cause of action of the homeowners against pulte does not arise until they own the hole so you have but it's sort of now that that theory council that theory is contrary to pull t and which seems to me whether it's pretty close remark was sensible on this issue the policy requires apparently property damage to occur during the policy period but it doesn't require that it manifest during the period or that person own the backward at the time the the requirement of property damage during the policy period is a requirement of the policy but in order for pulte to be an additional insured  liability for the work of the sub contractor most to rise while the operations are ongoing that's what this court found in evanston and that's what the th circuit in car woodward found so that he had provided he even though in car woodward was the th circuit decision relied upon by judge do you see the liability is not in the sense that we're talking about it says only with respect to liability arising out of your work and and only as respects and the th circuit in caro woodward found that the fact that there may have been property damage during the policy period is not the key the question is when does the liability arise the liability will arise for a if that's if the policy said that but this policy doesn't say that the policy provides that pulte is an insured only with respect to liability that arises out of your work which is ongoing right and so now  which is ongoing at least the one that i'm writing a note to a different policies than what i'm reading says and only as respects ongoing operations performed so it doesn't say only as right and the liability does not go into the nd phrase there were three different versions of right or smith halti agrees that the language is substantially the same and shouldn't be interpreted differently i'm looking at the st one that cited in the in the in the district court's opinion and it's in the the record at supplemental dollars that is the provision that says but only with respect to liability arising out of your work which is ongoing and so the issue is is this ongoing operations indorsement going to be limited to work site construction accidents which there's more to evanston found and you want to know one thing we haven't gotten to is the business risk and this auto insurance case and why it should be controlling here they hire men and have to so that this the significance of the auto owners versus gay construction case is that when a g c general contractor like pulte makes a st party claim which this is  seeking to recover defense cost from american safety so it's a st party claim that the v business risk exclusions apply to the entire project or in this case the entire hole the st part of the claim because they're an additional injured there are additional insured they're definition we're supposed to be looking at for your work that is the definition ok but for purposes of when a general contractor under georgia law is seeking coverage as additional insured the words you and your are interpreted to apply to the insured seeking coverage under the policy which in this case is pulte and that's how the court of appeals in auto owners found that you don't look to the sub contractor scope of work you look to the scope of work of the general contractor and you also and that had a provision that said that other people can also be you this for this policy doesn't have such a thing it does  in the ensuring agreement so that the definition of you or your in the ensuring agreement of all of the american safety policies contain the exact same language give us that site the argument is just it's not reasonable i think the issue that was raised but judge crater was the one that's really important manifestation is the issue of georgia and california when a manifestation occurs that's when you can determine whether there's coverage or not the burden is on the insurance company and on tell them there's no liability there's no there hasn't been right i mean in tell them there's no liability the district court clearly said there's not going to be coverage for liabilities that manifest after the subcontractor's operations  complete right she really relied on that and your response to that is that there was no proof of when manifestation took place which would allow it reasonable care to deny the fence so that time because they were just looking at the allegations in the complaint exam yes this is that the out that right and they denied at the outset without an investigation to deny the out so that no facts the out tonight at the outset without demonstrating or even attempting to demonstrate when the manifestation took place and that's always a problem with insurance companies denying this is they have no sufficient facts to allow them to reach the threshold in georgia or california that they can demonstrate by indisputable evidence that they don't have or will never have an obligation to indemnify and when they fail to do that as they did in this case then the duty to defend attaches until such time as they make that demonstration which they make of that phrase ongoing operations it seems to me i just want to give you a chance to respond it seems to me that your interpretation reads the word ongoing out of this closet just treated just as operations no the brisker position is true one is that your work provides completed operations into ongoing demonstrates the time in which the liability of that causes the liability to rise is it's a temporal analysis st as a restriction on the coverage you had to be doing your ongoing operations could be before your ongoing operations could after ongoing operation and act it took place during your ongoing operation operations lead to the liability that's our interpretation and that means that if you used electrical let's use stuc put up and it leaks while they are still having ongoing operations we now have liability that arises out of their ongoing operations that has manifested itself in other words that we they tween electrical work that doesn't cause any problem until later and leakage that causes a problem during the construction but the damage therefore no manifestation until such time as some later date after the operation is completed yes the provision may exclude it if you don't give complete operations to the term your work however if it leaks during operation and liability arises out of it you have a manifestation i mean ip discovered it certainly is not critical that who owns the house it's not critical of the house of saud or not so what's critical is that there manifestation has taken place in the burden is on the carrier to demonstrate that manifestation is outside of their policy they feel to do ok thank you very much thank you both for your argument putting home corporation versus th insurance company committed and