policies to paul and the answer under the plain language of the policy is the tie only priority risk that existed when the policy is and that risk was printing industry policy work what i want to just clarify what's at issue in this case my writing understanding that this is about a statutory lame for services labor material arising from construction lien coverage which is an option also under the preprinted forms if the title insure has it at its disposal it did not issue an exclusion in effect that was on their due diligence to check which was to do so how did the parties provision that seems to cover that not only just leaving but the timing that you're talking about and so what what is left of a lot of absalom out understanding i didn't see your reply brief i'm trying to understand we're saying here i'm not getting  under your reading of two untaet of love and a basically doesn't do any fire the elimination of a way of living a brewery why don't i don't think it does anything here number one it was replaced by thirty six which was designed to address an quite specific about mechanics lanes and quite specific about work starting before or after and you walk talk and need to discuss what kind of policy you want and they specifically offer you to attend but also eleven and you say we want to in town but we don't want to leave it at we want to believe that and in our current good is that the elimination of weapon a is not viewed in a vacuum  that is because the even apart from the other provisions excepting the premise of ambiguity perhaps under two in ten is because it is the exchange for a provision that actually expands coverage going forward under thirty to six but it doesn't eliminate the they read her active coverage runs under two in ten and i would suggest you intent are not ambiguous and the reason for that is because lean attachment wien creation i don't i don't think it does at all because the plain ordinary meaning of attachments we are creation of between giving rise to so that we it is an ordinary contract interpretation principles and you don't have to even look to expert in this area but you know just think of title insurance as if you buy a piece of property and you want the title company to do a search to see what's in congregating at that time and i think you would concede  available after the date a policy and specifically applies to work contracted for or commenced on before the date of policy and so a lot of a retard it's just what you got out of it i'm and i think that express exclusion which in trunks two in ten that they did not do that they knew this risk and instead what they chose to do was shift that risk straight to the bar or they entered into an indemnity agreement understanding and recognizing th important points here is this title policy you're right is backward looking but it's not only about what's in the that really speaks to enforcement of the inforce ability rains which is a distinction that we draw but it is really more than that it's being covered there in evidence we have is the deposition testimony from if you're on i'm going to get you to the back record psychic that's ok the best evidence we have on that on that score is testimony from  not have been a loss under the policy depending on how much over there would have been so so because those facts in play out like we don't know but it definitely turns and not whether there's a reason but whether there might have been a w filing sure mortgage they try to equate that to an existing leaner recruitment exit on the date of policy and those are not the same things the risk that mr mesh is talking about is what they focus on the title industry and construction industry referred to as a broken priority list broken priority risk and it's obviously can be quite common in construction wending cases where the contractor or some contractor has started work before the insured mortgage title policies issue was or not that later arising mechanic lien ultimately covered but policy depends on the terms of the policy and i think judge poe has focused in on this quite correctly which is the general coverage provisions for means or encumberances that arise after the policy date that are created or attached after the policy date so yes to answer judge post question directly comfort risk eleven  explicitly and specifically would cover this situation that is what it was intended for and the general insurance provisions are not there is recognized by the th circuit b b c syndication coverage and as you probably saw that date of coverage gets moved what they call a date down every time a request for this additional advance this may what that is intended for in additional work as is being done there's there's more time lag getting between waivers from from folks and there are certainly developers and contra prime contractors who fail to do what they're supposed to do and making sure that with that advance that they get from the lender that the liens are all paid off so yes whole republic still has mechanic's lien risk that it motions were made and we pointed out there was no coverage under thirty two of six that they took the position well we're not even speaking that in fact it's a relevant case it's not irrelevant to the case it simply doesn't provide them coverage but they want  and the effort to create this there is a distinction and thirty two of six provides prospective coverage that is greater and doesn't take away retrospectively cover to construe the agreement in its entirety that means all the provisions of it none should be surplusage another subsidiary canon of that is that the specific controls over the general and here we have in fact the parties with a fairly sophisticated delicate balancing of what will be done with mechanics liens are going to arise because this is a construction a nd they have set it up this way contract in this way explicitly because there was broken priority respect over public was not willing to take and halls argument is well let's just ignore all that let's go back and pretend and they have yet to be able to explain why that does not make a weapon day or a substitute in this case thirty two  retained a lien for some reason because of that that is what thirty two of six was intend to do but it requires that the lender has to fund and because these all of this here's based upon what hall declined to fund the entirety of it and let me jump to that for a moment because that was a question you ask just women about is there any pre the work that is included in that in that lean amount in the short answer is no we judge quoted the summary judgment evidence that we put in the record from both the developer and from paul itself that those liens were those those that were pretty policy was paid in full all that was a central feature of our argument you know summary judgment in under three d in particular but it's also goes to be is there even a mature in clause that covers it all it was not as i think referenced in all brief a passing reference that we've made in our brief it was it was the ark and whole recognizes the argument their reply brief on their summary judgment explicitly recognizes that and they try to make a legal argument why that is wrong but what they don't do is say that that was disputed fact there is no argument in their summary judgment that they dispute that there is no citation to any evidence in their argument that they disputed that fact what they do now on appeal is go back and scour the summary judgment record and as it turns out they put in the entire deposition of scott geyser one of our corporate reps and without citing to what they now cite the court to they argue there is a reference in there which frankly  is not very clear at all and not something he was designated to talk about saying that they think maybe that was retained it's withheld out of that prepared but the court the district court is not required to go scour a two hundred  deposition looking for evidence of a fact dispute that hall itself does not even tell the court existed this is a bit of a hail mary on appeal to come back and say well even if you agree with  republic that only and the district court that only pretty big policy work could possibly be an issue for a clean existing at the time then you know we have evidence of that and they do not they've never never tried to even raise kohler because i detected in your brief just maybe a little discomfort with the disproportion reasoning obviously not with it was ill but i mean you know just to be candid other parts of the district court's reasoning that you can defend on appeal you wouldn't you wouldn't you wouldn't advocate for court that we report is that in an opinion i'm just you know i'm just being honest with you  post policy work under three eric i don't think that's really very marker bhushan three i think the district court correctly concluded three a day would exclude coverage even if it was available words that other courts have interpreted once a circuit decisions on this issue that's were in there you do make an argument on that that's fine but the three d part which is related to the deletion of eleven correctly in reaching the correct result but there's there's two parts of the analysis the st part is is there even coverage under one of the assuring clauses jetstar said there is potentially coverage because there was work done it sort of a adopting a version of the argument made by hall but that that would be excluded by three d because that work didn't form the basis of a lane only work done after the policy and so i agree with the conclusion on three d i disagree but there's a coverage there isn't sure in clause that actually even implicates covered that those two arguments from our perspective attaching after the policy but in this instance we think that analysis is should be the same judge found there could be coverage under the ensuring clause and so he relied on three d to get to the point that i think is correct under either of those arguments and the reason i think that's correct under either of those arguments is beyond just the policy or anguish itself and the rules of construction which the court has already noted there there is clearly a distinction between whether a wheen exists and it's given and the question here is did the lien exist at the date of policy and the case law is clear to get a  even though there was no filing of a lien and even though that work was paid off that was done pretty policy the fact that the car and to use the relation back will the mechanic selena's obviously it is an area with his comes off often but it comes up in other areas with municipal assessments of taxes and we've cited those cases in our brief but say the fact that the work might have been done for an assessment or that the taxes were set in motion and even one of the cases say even though it's a virtual certainty that that's going to get assessed if it's assessed post policy it is a post policy matter and not covered by the policy then the argument that hall is that dancing is would completely up then all the title insurance laws out there on this point it is it is frankly sorta radical and i'll give the court a hypothetical in most states or certainly many states including what we're dealing with here the relation back doc from the contractors not necessarily limited to work that that contract before the mortgage was done includes bacon they can tag along to some other contractors if it's the same work of improvement so under hall's analysis the the  there's pretty policy work it's been paid off entirely no question the folks have no wino will work at that point in time of closing but a year down the road some sub contractor who doesn't get paid can relate back to that the event of the priest pre policy work having been done and halls argument is even though that person had nothing to do with pop with the project the time had done no work as of the date a policy those folks had of weed on the on the that is false position and that simply cannot of all the case law the language the policy and simple object that person didn't have they have they got to lean later and was allowed to relate back which is what open a is designed for discussion started and paul conducted these discussions through their outside real estate boyer's the the underwriting folks at republic decided that given the broken priority wrist they diligence checklist of bay made the decision not to include it in that is a preprinted construction room policy issued by the title insurance company in all kinds of cases the bay chose not to do it what did they do instead they usually did in debt they and there underwriting absolutely focus on this pretty policy work so there's nothing radical at all about our position here in one of the reasons this is this is a very unique set of negotiating circumstances in context it particularly so because of the unique context of this policy number two turning to the district court's interpretation there is some discussion we've from judge duncan about what what might might be flawed in the district court's opinion and i think what is flawed is under both really three d the idea that paid or unpaid matters it does not of language of for example create has to do with conduct by the insurer is an intentional or an equitable conduct that's the focused on whether there was intentional and equitable misconduct and that's how they answer the thirty eight turns out and i think we have a clear clear winner there and that's because there is no evidence of intentional misconduct or serve there was some discussion towards the end all republics argument about the notion of three d being a bar to coverage and i think there are going to fundamentally misunderstands with three d is about ready is designed to address go exclusion re be repeat explicitly recommends that there is coverage for incoherence bet it is risks that are not recorded in the public records but emerge later on or not disclosed here none of that's in play this is fully