briefing i think the law is fairly well established and i think the main issue before the court is the interpretation of the document at issue specifically how does one accept out of coverage for the alp nine and dorsal is it fair to say that there when you look at what you've submitted and what we've read that there is a custom in practice as to how one goes about accepting out from the all to nine indorsement absent things absolutely are on it and that custom is to consistent with the purpose of title insurance or at least one of the purposes which is to provide the insured with information concerning title the way to extract out of alpha nine coverage is to refer to the pertinent restrictions covenants and conditions in the context of the document where the document is also referenced on schedule now what you're talking about here i assume are you got in schedule b what items one through six is that correct be one part part one of schedule b and if it is what is your argument that in effect one through five if you list a document those are the things that are supposedly have priority or are a cloud on title or but not is your argument that if you wish to express lee except something you have to you've got one two three four five six and then six says a b and c or refer to the specific the apartment easement rights insured under the license agreement dated march fourth one thousand ninety one as located on the survey prepared if commonwealth were correct the mere reference to the survey would be enough to accept that of often one coverage they are not correct and as exhibited here in number six they did it correctly this time they didn't do it correctly for the restrictions but as far as easement rights go they did it correctly by under policies it's not uncommon for instance if it's twenty percent fifty percent oh i would say more than fifty percent because there are many there are many instruments that will be subordinated i can provide interest to the mortgage that would be the kind of thing that you get put on part two it is not the case as commonwealth argues that the items on part two are not exceptions i think it's clear from the schedule b itself that pops as exceptions from coverage and i think that the sources that we have cited to show that part two refers to exceptions and i think that is they took the commonwealth argument commonwealth argument and as found by the court below is that part two of schedule b does not refer to exceptions i submit if there is industry practice material out there that refers to a part to schedule b as exceptions that is failing the commonwealth's argument i also submit that if there are industry sources out there that your party has not report to anyway you don't care about that i don't care about it i mean in one sense it is a board yes that's correct that's correct however i think the title insurer cares they don't want to the entire idea obviously behind insurance is to accept out of as much coverage as possible otherwise the title insurance company can't make money so it's in the title insurance company's interest to have part two refer to exceptions subject to the limited coverage or subordination i think that's consistent with the and you say ok i'm looking at scale it will be one and all tonight indorsement what makes you make that request i think most lenders ask for it as a matter of course because it provides them with coverage over all of the exceptions if that's the way should be done and consistent with the materials i provide it with my supplemental briefing and i believe consistent with the materials that commonwealth has provided with that supplemental briefing it's clear that the way to accept out of  through it and point out potential traps so there is i think reduced diligence that's what the insured is paying for in essence is for the title insurance company to search title that's that's one of the distinctions between title insurance and regular insurance which is the commonwealth submission was there i didn't to the quotation that they refer to is to a commitment this is on page three of their supplemental briefing  will see that the first the lips s or the second let's assign should say their words that are removed are of a night very committed a commitment is a very very different document from a pile insurance policy this very different they're very different and part two of the commitment refers to actions if you look at the out the policy part to reverse the exceptions so this quotation actually supports nationwide particularly to confirm whether any of these additional items exist the next ellipsis there what is missing is easements liens for liquidated damages private assessments or options or rights commonwealth has  eliminated the the phrase ology which defines items which is the provisions which again it's nationwide's argument that you have to refer to these provisions as this provision here says in order to accept out of coverage so the other thing i wanted to point out was in one of the three that flow from number three the verbiage immediately prior to the quoted material is as follows additionally the alpha nine war beginning the content the issuance of the alkaline requires if you were to print out the referenced document the sentence immediately prior to this text is additionally the out to nine protects is in the brief and it's my contention that that language fairly clearly supports nationwide's position that you have to refer to the provisions on schedule b or if you in order to accept out of the pertin insurance coverage in the out of nine  similarly if you look at number nine on page seven of their supplemental brief the there is an ellipsis in the third line of the content again if the court were to print those out the court would find that the lighted material is reading it in total paragraph one the two may be given provided all covenants conditions and restrictions shown a schedule b are examined and specific references made in the particular schedule b exception and here's the material that is to any provision for  damages private charges or assessments options to purchase rights of first refusal or approval of purchasers or occupants again that supports nationwide's position i see my time is running down and my point is no we have it will give you a few more so this is an important as well my point is merely that if one goes through this supplemental memorandum submitted by commonwealth and looks at the material that has been elided one will find more often than not that in fact supports nationwide also if one goes and looks into the documents as a whole rather than just the quoted material i could spend some time here running through very favorable quotations in that material that are favorable to nationwide again pointing out that schedule b refers to exceptions once again if that's true that's fatal to the commonwealth's case as well as other references to the fact that in order to accept out of the out the one coverage between instrument and right i'm sorry the distinction between instrument and right and yes are the instrument itself is the document the rights are contained in the document if you look at the alpha nine indorsement it is it is clear beyond peradventure i would say that the focus is on specific rights rights of first refusal assessment rights things that will cause the lender harm if and when as in this case the lender takes title to the property therefore it is those specific rights that are found in the document that should be referred to on schedule be in order to accept out of them and in order to provide the lender with knowledge hopefully at the commitment stage that these things exist because at that point the lender is able to look at the documentation and enter into other agreements with third parties to either waivers or subordination or not do the deal or not do the deal that's correct thank you thank you very much stone why didn't you put in your own guidelines after consulting with our clients they were not aware of any explicit guidelines there are few guidelines that reference different companies none of those is the particular company doesn't every company have guidelines for when it issues also might interest me somewhat and we were not able to find any for our clients we're not aware of any existing with respect to this indorsement you're a subsidiary one of land america we are related to land  america but we are separate entities and i am not aware that the commonwealth has them who owns commonwealth titles land america own them i don't know the simple answer to whether it's owned by i know that they're related because the  the other side put in on page nine land america's bullets and f l over five seven and it clearly appears to support their position well i'd like to start with that your honor and i don't think it does i think the distinction that is being that is not being made are between exceptions and exceptions from conflict is that your main argument that when you get face schedule b with a commitment or the final policy and you look at you say i want to have insured over certain things that's the purpose of the all tonight indorsement i want to ensure over is that correct that was your it's over i'm saying that that is part of what one of the all of the nine the first two but i thought your argument in your briefing was that what you ensured over in this case was schedule b part b parts one and two what is your insurer over by your overnight endorsement those things that are not expressly excepted by schedule b which means are in schedule b to and which further on our instruments that contain c c r s that satisfy a little roman want to put most policies do not have a b to do that or are not aware of the percentage of which ones have the ones lot of cases where even in mortgagee policies you don't have a schedule b part two is that correct there are certainly cases in schedule b one says that there may not be good reason here you wouldn't care about those good will be part two if you referred to in schedule will be but not expressly except in schedule b is if you can find it somewhere in that schedule but it doesn't follow language telling you you got no coverage for but the let's just let's just play th yes so you're saying on page nine of your brief that what you accepted out were those items are what you ensure over those items on schedule be part to a subset of yes a potential site now if you go from a mortgage east policy or lean holders policy to an owner's endorsement that's all to nine point one is that correct i believe by senior and that that appears to have and i'm looking at the language here in one point one it appears to are identical and the standard owner's policy only contains a general schedule b but not a schedule b part too then one point one what was the altar nine indorsement cover your honor i don't know that owner's policy could never have any kind of interest that is not subordinate to something else out there in the is one that cannot be jive with the language of policy i made this day but what they're saying is they've put out treatises yes your honor north carolina bar association yes you and others are saying that the way it's done you take a look at this particular policy i'm with you are completely out of the way it's done is the way you do it in number six and what they're really arguing here is that something in four or five was just missed it was put out there was a mistake what happened but cannot be the case for example if there is what did your policy here indorse over paragraph one v two if i understand your question correctly judging paragraph one to insure is over i would nationwide even care about getting at all tonight endorsement of paying additional money for what's in schedule b part two because it's it's they're parties to it they know what it is well that's correct your honor but you have to understand one of the things nationwide mention is how it in a policy title insurance differs from any other kind of insurance and it is correct it is different but in a sense that is what this all of the nice east title insurance as a general matter provides a snapshot of the condition of title at the moment the policy issues future events do not trigger coverage the way they do in a casualty policy except i am talking with the part of the  except to the extent that they show that something that with its were presented by the title company as of the date of the policy was not accurate all eight of the insuring provisions in the main body of the policy heal with with express  lender in the future are listed on schedule will be i respectfully submit there is no way anyone could read the policy does not insure against loss or damage which arise by reason if there is no way that anyone and not one of the sources cited by nationwide says that i will look at one of the ones which they claim that was created asked question number three the sense that was pointed out as reportedly supporting nationwide's condition is the following rights yes in this case is what rights but there is no basis that i'm very particular documents that represent your honor the document the pomp the alter nine itself does not say you must less rights and respectfully none of these sources say if you do not list the rights you have not expressly excepted them but if you were to do this all over again would you have gone back and specifically pulled out of items four and five the rights of first refusal and the approval of tenants i don't know that we will surely didn't sit with respect to these it seems to me counterintuitive to list on something that is clearly excluded from coverage an entire instrument and to say that provides less protection for the title company than to list a specific right but if six includes an entire instrument another hit well sir because what you did was you followed the tradition of the custom and practice of how you go about saying that i am not going to insure over item six the particular easement rights the question is how do you go about right in the instrument expressly except them do not expressly except them from coverage and none of them says if the instrument is accepted it is insufficient if there is a recommendation in underwriting guidelines to take an instrument entirety which by definition includes instruments if i may your honor even yet every lis agree with everything i have set though i hope that is not the case there are sources which clearly say to accept it from coverage you do not need to accept individual rights you only need to accept the instrument as we have cited them the only way any of this extra is with serial that is beyond the whore corners of the document and that is if under pennsylvania law nationwide can point to a word or language or phrases that means is meant to by the parties or by consistent industry practice to represent something other than what it says even if there were a source or some sources that say what nationwide says they say with policy and respectfully i disagree not one of them says if it's explained instrument is sultan endorsement they're getting quite a bit of coverage they're getting covered under one for a whole set of things that you ensuring provisions don't cover their getting coverage under the one through five not of which is echoed by ensuring  ensuring provisions deal with the snapshot at the date of title of automata all tonight endorsement i think your brief said that the ultimate indorsement use is only ensuring over what's in schedule b part two correct respectfully paragraph one b two is only referencing b to schedule b to excuse me and it must were preference something and only one of the all tonight has you have to decide what part of schedule b is is on nationwide you don't agree with that do you as an add as an abstract proposition i do not your honor district court did not sell find the district court was referencing and extraneous source supplied by commonwealth and noting that was what it said it didn't help that position however you want to there is an element of truth to the proposition that there is a duty upon the lender when taking out a title insurance policy nationwide decided we completely effect the way you do it in six not expressly except it is the way you do it in one through five that's the argument and i believe there's a lot of support out there for that position none of the support says it is lis the third item in the supplemental briefing from commonwealth is this and this goes to why the question why didn't commonwealth include its own material it did this is it number three commonwealth office alpha nine coverage on residential mortgage policies it's residential but it's mortgage it's the same in dorset this is the source for the prior provision i read if you go to the back of this there is a purchase approval and then says yes so down here it tells you commonwealth tells us what commonwealth should do when this occurs as it did in this case and here is what commonwealth says in their writings not what they say before this court easement created therein dated blank in what it is that they can from this is the third item content and in commonwealths supplemental briefing this clearly supports nationwide's position and is distinctly at odds with everything you heard from commonwealth today i submit that given this given the multiple sources emitted by nationwide given the kinds of errors you see in commonwealths briefing such as the inability to discern the difference between a commitment and insurance policy that the court ought to be careful and discount virtually everything commonwealth has said that this court that document