an insurance policy term a deductible or be hurricane isaac rooter loss or cause loss to saratoga facilities and there arose a dispute about the applicable bowl that was to be paid by saratoga the dispute is in the range of nine hundred twelve thousand dollars as claimed by lexington and four hundred thousand as claimed by saratoga we we start first with the salvo then to saratoga the policy is not in big news i would say that it's not a picture of clarity but it is not in big with policy because they are not two reasonable interpretations that the parties have offered in the name of constructive or sculpting a runoff for us by knocking o everything that doesn't look like our mine offer us we start with what they lexington policy is not the way to start off with what the lexington policy is not is to focus on the argument of fire protection equipment a lot of perils that are insured this is an record thirty three we provided the court with exhibits and that's exhibit number one the district court  lexington offer the following in connection with the lexington policy issue in the dispute arises as a result of the fact that the lost cause the cause of the loss was a hurricane earth movement and named winds the wind adoptable which was the portion of the coverage that closed the last back was claimed by saratoga it was a hurricane and so what we have set up is a policy which has mutually exclusive deductible provisions number one the one hundred twenty five thousand dollars about the ball applies to all laws on the policy except the specific laws generated by the ear began with your interpretation why he will be against you is because he says your interpretation gives no meaning to the term total insurable value being a plural tom meaning more than one he wrong give us explain how under your theory and you can have that plural turn eight the way the reason that the district court was wrong is that he started off on all the damage properties in as lumped is one occurrence which is a single claim doesn't that make more sense if by not a pause if that is the way you do it then you can never per the schedule it would you would read out that provision of the policy you would never hand to applicable the dup doubles for a loss where you would have to choose the big  you apply the largest a ductile you would never apply that provision unless you looked at the individual lines totally sure now it comes and chose the largest one what about if it's your turn you're harmonizing this relation between take the largest deductible either the deductible under the general deductible provision or the deductible under the earth movement but name one storm provision and that gives a fact to that provision you're on you are reading out the exclusively applicable the belt provision in the policy if you do that what you are doing is you're saying forget about the unless we will assume or policy as the basis for that analysis because the becks our policy lists a lot of perils and it's serious if two more of these perils apply you choose the largest to have a case it is applicable they want the closest one we can find is the alex case out of alabama it's not directly on point but it does have a schedule of properties and it says that if there is a loss to more than one of the properties then you take the highest the duct the bowl for the particular property and use that as your deductible we don't have that what we do have here is this that we say is an analog to the access attached schedule of properties this is a schedule of properties and it's a schedule of insured and what we're saying is that bex are is a totally different policy it has no unless language this policy has unless line it has a declaration of schedule and it has a list of total total insur as its interpretation is the only one that gives meaning to all of its parts the deductible provision has to raise separate parts each one stands on its own neither none of them are subsections of another the first part is a catchall deductible hundred twenty five thousand dollars the second one apply is when there's earth movement flood or named wind storm and or named one storm that's five percent of the total values and the final provision is applied when there are two or more deductibles there's no dispute about the first part the second and third there is a significant amount of dispute the second part speaks of five percent of the total insurable values the word total doesn't fact mean aggregate so you do take all of the you total them and then you take five percent very clear the third part says if two or more deductible amounts apply to a single occurren this particular case we don't have two or more deductibles we have one and that one it was calculated in part two by taking five percent of the total insurable values which came up with one deductible amount so when you get to part three you say ah two or more productive amounts this doesn't apply you don't hear that doesn't mean it's meaningless just because it doesn't apply in this case judge miller offered an example where it could apply and lexington did as well judge miller's example is if there is a fire and a name when a storm which is not all that is frequent causes a loss in that case the fire goes to catch all deductible one hundred twenty five thousand dollars and the named wind storm goes to the second part of the five percent which has to have a minimum of two hundred fifty thousand dollars obviously the second part the named wind storm is going to be the higher one because it has a two hundred fifty thousand dollar minimum that doesn't mean part three of the provision is meaningless it just means that tells you if you have a catch all and you have a five percent it's the five percent  that you're going to charge if there are only two types of stuck to amounts how can there be two or more deductible amounts up in that example fire in the same windstorm together cause of one loss another example is named wind storm and flood cause one loss in that case you only apply the higher i can to be more how can it be more than two when there are only two type no because because earth movement is one what is one named windstorm is one catch all theirs who are different types or different types are so different types one of those counts as one type or act and so there could be two or more correct in this case ok right so that gives meaning to all three parts it's reasonable but and it says there's not there's no in this case there happens not to be but there can be such a situation i wanted to just play out the arguments as it is i'm sorry that i was just laying out the argument that's being made by counsel to see right what do you do about the part that counts says that this policy is unique and the case law that was relied upon it's inapplicable well actually i don't think the judge miller wrote the laws on the bare county case at all nor does lexington the only reason lexington even because it provides the example of the multi parallel occurrence named wind storm and flood and that supports the case of language is different and we don't look to that policies  and fact there's really no law to give you any guidance here it's just a plain reading of the provision for your group council again there's not really good case to go by that's current it's based on a pla not conduct any discoveries whatsoever we agreed that we would not conduct a new discovery this provision shouldn't just automatically be rendered in favor of the insured were at least entitled to determine what were the surrounding circumstances of the policy negotiations after our man in texas cases the talk about that one of them is houston exploration versus wellington that's from two thousand and eleven it says a written contract must be construed to give effect to the parties in tampa expressed in the texas understood in light of the facts and circumstances surrounding the contracts execution say that in that case it was a of london market insurance policy and they said it was crucial the manner in which insurance in this case was negotiated in the london market is crucial to understand its terms this policy was also negotiated in the london market so information about ads exactly how it was negotiated may be in lightning to the meaning of the provision and we would also like to present the possibility that the sophisticated insured exception should apply i realize that has not been recognized by the texas supreme court but nor has it been rejected and the district court should have the opportunity to make its guess as to what the texas supreme court would do the northern district of texas has already done and it said judge what fitzwater said that the texas supreme court would apply that exception so that is lexington's argument unless you have questions you'd like me to address that i have not addressed thank you counsel believe we have your argument that is relatively easy to invision situation where a single loss could for example results in both flood and wind it which case the larger the winter flood deductible would apply for the district court's opinion that talking about it namely don't you agree with that i agreed with that but i also would point out to the court that slug is within the name windstorm the duct up you can't have a larger was it's been a common you're going to see him a cruiser different causes that get attributed to those those parents all have a santa dr if you want to take that position you have abided by my interpretation because my interpretation is a property by property analysis and what you would have to do there because you have to sign the docket book you have the same deductible for flood but earth movement and for name one storm in beck's are you have different