unemployment give me one example well this representing the circumstances of the employment for one thing but i want this representing the circumstances of the employment this representing th well if in other words if the net result is that you gain an advantage over anybody which is the onus of fraud that you're exclusions excellent coverage for that so again it seems to me that there's some course with the district court trial and i guess it was in september and we say now because up to this time the claim hadn't been liquidated because it was still going on now there's been a settlement now there's going to be extra contractual and we attach to the motion to continue the assignment of the bad faith because they say research says you should be continued so that we can we westport can do more discovery we're fine we've done enough that they don't speak for us and acknowledged you know say things like r accepted the assignment knowing full well this trial was going to be now they'd better be ready to try and we are after this continuously in case they wanted to do something else and for frankly to give me more time because i was just i got the same amount and do the same because i where i came into this case i hadn't done a deposition or anything and i got up to speed and tried but this is true it was coming down the track starting in april of that year and they knew about it and then they filed something on the eve of trussing this is the first time we've heard about  was simply false but i think the court was correct the complaint in this actually talks about indemnity now indemnity is a dollar amount and in this case it happened to be in excess of the policy limit alternately but they talk about extra contractual like there's extra contractual damages and they really are not i mean there are extra contractual since there are in excess of the contract but they're not after contractual damages that the court normally sees in went ahead and tried it and the court amended to conform to the evidence which i don't even like so i don't know that he needed to do that because i think you can make a strong argument already strained by the complaint but an argument was the second part of that rule which talks about the amendment as a result of the failure to objective evidence and or some such an amendment when there's an objection to the evidence at the trial that injects new issues and in that situation the court allows for a liberal amendment they specifically say yes because if the party thinks they're being harmed they can ask for a continuance westport never did they had that opportunity and then they have to show substantial prejudice to get that and they've never shown any substantial presence up through today they've never said what we were going to do different who w notice to the parties the contract exclusion was never tried it was never brought to the court's attention how do you bring the issue to the court's attention in the absence of the pretrial statement in your pleading complain or answer historical section when you talk about this is the history of the case later in the only it's very clear says here's what we're here to try and there's three issues on the street shoes that appear in all of the things i just mentioned late noticed undue profit and unreasonable fees those are the three things that he says we're going to try and going back to the reference to the reservation of rights whether you were first of the very first reservation rights and he cites a number of defenses or exclusions that were in that letter and that letter claim the reason we deny the policy limit the man was because of late notice profit advantage and nothing else so how can they come back again to begin with and claim it was anything else since their guy was there and we tried it and that's why bad taste was tried he is their only witness on bad faith he's the guy that got that receive the policy limit the man he was the one who rejected it and the reason i profit so that's the big difference between the two these are not apples and apples these are outwith the oranges when there were six months of notice something that was addressed with this is put on evidence admitted without objection whereas one never brought up no for our side says that over ninety percent of the settlement value he attributed to the tort claims and in particular the big count three converging claim that has nothing to do with contract and  royalties and you've misinterpreted what percentage we're supposed to get and you have for some time and that's twenty million dollars and that needs to be recalculated ok let's go on to one of the count three says ok subsequent to the contract and having nothing to do with the contract you school intellectual property belonging to us this intellectual property that constitutes what they call know how our technical information that we developed after this contract and you gave it to bristol myers and that stuff you provided to them has a value of two hundred million to four hundred million dollars and in terms of the profit stuff this went through a lot of different people not just research the answer judge thomas this question and the bulk of the testimony trouble was they got zero but even that's why you have to get beyond the complaint say this is general damages what does it's not addressed in the contract at all they said this is something that's not addressed a contract we developed after the contract you got a hold of that got to bristol myers there's another count about breach of the due shiri duty and and the two hundred four hundred are separate distinct from that contract right it's not covered by doctors are governed by a contract that didn't exist at the time the contract and so that's why it is entirely separate and distinct and the other counts the frog count the breach of the future duty coun suggest that we had a duty outside of the contract to negotiate better terms with bristol myers better terms for them and they didn't leave that as a contract there's no contractual obligation to do that you know this isn't a situation w what we would have ever received and that's why it's separate and distinct from the contract but to get to give the court an idea here's an if you had a farm and you had a truck on it and you went to a used car salesman said i want you to sell the truck on the farm go pick it up  arizona law once you give coverage to take it away it's got a very specific everything's construed against us that are etc now in the case at hand what they are talking about is not even an exclusion it's not in the exclusion section it's leaving excluded because it was out of the contract to show me the movie i said that's exactly right and that's why that exclusion is not that brought particularly the way it's written here and where it's contained in the policy because it would