into the into the lake to the center of isn't it great now to dispel a couple of things which are not to court you know there was some suggestion about the adequa of notice in the claims of those things filed in there but i think we need to do away with those because while there was an affirmative defenses raised the trial court found that there was no prejudice that the defendant had proved no prejudice and there is no cross appeal here and under paragraph three of the contract of insurance there is a specific provision that says the failure to notify the company shall in no case prejudice the rights of any insured under this policy unless the company shall be prejudiced by the failure and then only to the extent of the prejudice so that leaves us within four corners of the policy because the defendant in this case never did anything under the policy they had a first duty to defend or to prosecute to preserve other defenses but did nothing further it's our position and the two threshold of the primary issues before the court are the interpretation of the contract it's our position that under paragraph six of the congress they having failed to defect or having failed the prosecutor take any action to preserve and protect the a church property as insurer into this contract of insurance they necessarily found themselves under paragraph six which says they have essentially three separate options to act under the policy which to settle and terminate their claims the first of which is simply to pay the policy to the insure they could have done the second two options that they had was one to go to the third five claimants encroachers those that were seeking to take the insured land away from the insurers and to settle with them they did no such thing they made no effort to do such things and the third option they had was to attempt to settle with the church themselves which they did not do having not done any of those it's our position initially as a threshold question  dollars which is the amount of the loss you know under paragraph six but assuming them for the second issue they go and say that somehow or another they are intitled to actually address the issue of what the actual loss was in this case the measure of damages is also spelled out in the contract we moved to paragraph seven of the contract there where it's been is very specific measure of damages requires that the whole be valued including that which was eventually taken away the defect or the lost property and then evaluation done with the defect or incumbrance in place and then the difference between that is what the loss connected the large tract of land to the lake springfield and when the department natural resources intervened in claimed the property and put this property away from the defendants which had been insured lake was reduced from fifty four point six six feet to four point six six feet in basically making access to the water just for any purpose other than perhaps a half walk when they watch this property he was very clear they didn't buy it because they want to play turnips or corn or anything else on this right away it was to have access to the lake springfield and to provide access to  lab owners of the town parcel which was the maximum sixty acres which was expected to be a subdivided in future this testimony was it's the law the owners would pay a lot of money to have access to the lake and i think we've and if it was a thousand dollars a lot the two hundred thousand dollars loss by loss of access to the lake the defendant's appraiser obviously misunderstood his side he never did make an actual calculation under the contract but he during his examination direct examination he came up with this notion of a contributory value and basically if you carefully all he was saying was if there was an acre of land there this is just farmland you can just evaluate on a per acre basis and when you take when they go away that's what your loss was no regard although we did acknowledge at one point that you know the way access to the lake would have some of it but there was no regard for the fact that all of the down and state would be deprived of access to the lake and the valuable rights that are associated with that ultimately he also acknowledged that i laid a lot itself around like springfield which are least lots except for this piece of property which was unique because ownership was vested those lives have values around two hundred thousand dollars he acknowledge would make us credibility and we're really on the position to challenge those credibility are we as a you were well known in the you know i don't know i think i submit that he erred i mean we focus first on saying that the policy itself said they owed the hundred sixty thousand dollars because under the terms of their own policy why should we even reach that issue he did reach that you know i don't lose sight of that because believe that's part of the country not our position is that you have to start out with paragraph four which says our we have a duty to god prosecutor family having not done that then they go to the additional remedies provided for paragraph six which say we can pay the policy or we can go settle with other parties or we can settle with the land or they didn't do any of us that brings you if there is a legitimate reason then to get paragraphs out that's where the definition is made because the there was no testimony that there were actual restrictions on this good that the access to very valuable rights was lost it seems to me that maybe the damage is very obviously much much the simplest way to review this is if you own land on the beach and somebody put a fence across it so you could access that it just seems to me that it's very obvious that the loss is much much greater than just  access payouts from their homes either least their own that there was nothing in the record that i know i wouldn't doubt that would be helpful would get me to my house or the water narrative the bottleneck access when he was talking about having such little value for him to say that because it's fifty four point six six feet wide has minimal value i think just counterintuitive to any sort of the plaintiffs on more land there on lake shore several hundred feet of lake shore obviously it opens up there but there's only this one narrow bottleneck where pick a car through the more you can drive boat trailer down there maybe a golf cart but that's about all you can do started understanding his assignment during district examination was trying to make an effort to include this quote contributory value as a difference and in value but it turns out he have interest actually which allows for a five percent interest from the time of the loss so we did ask this court reversed enter judgment for the amount of policy in order that the penalties and company authorization of the option to step in and defend his insurer fendi case will through trial and the appellate court my point is that there are kind of options other than what these three that are set out of paragraph six the introductory language in paragraph six says that the company shall have the following additional options so even that language recognize those are the only three thing make no sense to say that those with the only three options have particularly here because by the time we had written notice this required a policy eight months had passed since with them if you follow the logic of the plaintiff's advance today and have a fan this is an argument and the record includes overtures on part of stewart representatives to settle the case however option on the subject of the measure of damages which is the best issue and a separate one that has been the most attention today i guess it was a battle of paul right  hundred and seventy six thousand dollars in there he says take out a fifty foot strip with almost an acre by square footage take that out he says it's my opinion  been in the other part i mean that that was his opinion that was worked a court had to evaluate the credibility of mr writer versus the value of this of this last spending anywhere between eight thousand and twenty thousand dollars per lot theoretical subdivision had been developed and there were two hundred lives people would have paid me anywhere between eight thousand and twenty thousand dollars more for their lives judge zappa found that not to be credible his exact words i don't remember but when we were arguing over whether that testimony was even admissible he said cross examine everything cross examination that is and everything else that might be said about mr rogers method but he's got it evaluate fair against what mr pettitte goes testimony he found to be not credible he didn't say not as also significant on these last i say there's only two missions section one fifty five is their faith insurance argument they break it down to two parts penalties and attorneys fees but if you're that didn't happen until a year ago when just sap interest his judgement or prior that no money was due so there can be no entitle to prejudgment interest on the theory of the money  very briefly just a couple points one of them the suggestion that the additional options under paragraph six somehow suggest that there's a whole plan of other remedies that can be brought in from somewhere really isn't appropriate if you look at the contract itself because we start out with paragraph four which says you defend your prosecutor you jump it and it took knowledge that mr listening at knew very early on that he was their age they acknowledged him as their agent in the trial so those options are additional options to those of the duties of the insured to jump in and take care of the problem that they had in short the suggestion that