not i think two things on that first of all i don't think we have a situation where the district court dismissed the insurers not only their were by the way not asking this court to decide at this juncture we're simply saying that the district court's decision saying there isn't a duty to indemnify because there disability to me is a question of subject matter jurisdiction and we don't give advisory opinions as texas does and in louisiana doesn't and the whole argument is we don't know what's going to be proven at trial but it's possible your argument i think is it's possible we could prove loss of use of tangible property injury physical injury to tangible property and therefore since we don't know what's going to be proven we shouldn't decide that now i'm case because i was interested in that but when i looked at always the end of cases they sounded like the texas cases on this so the direct action simply means that everybody's going to be in the same lawsuit and it's all going to be resolved in the same lawsuit it doesn't mean necessarily that you can decide an issue that a particular issue is ripe at a particular stage and again i mean for example in texas you follow declaratory judgment action as an insurance company and say i don't know coverage and i don't know a defense and the court says well i can defy decided offense now i'm going to wait on the indemnity and that's how that lawsuit goes and nobody's upset that you filed the case but it just doesn't get determined until the interline liability case is done so i don't i asked the question about direct action because i hostesses claims for coverage so i think in that instance the court necessarily cia and has to reach the question of different ideas see the duty to defend discussed at all other than seneca saying we're not in bad faith because we offered a defense under reservation rights not to tell you i did insurance work granted in texas for many many years and i won't let a client defendant a restoration of rights if there is absolutely no way they could ever coverage under the eight corners of the petition and the policy the proper thing to do there is deny it reservation or bronzes when well maybe this maybe now we don't know it on oh i don't know so we're going to come in with all these disclaimer then you can do that and i think given the way the district court approached the issues here we would fall under those exceptions if we work on my texas law i don't think there's any question that first of all nobody challenges our right to use the direct an improper vehicle by which we got to this point i do think that the district court conflated the analysis and i don't think any issue was brought up that maybe i got it and you know basically if i could sum up because i didn't want you to get to the of the argument you got our letter and you concluded well there's a direct action statute that must cover this and that was the extent of your research in response to the court's letter because you haven't cited a case to me or said anything that is in any way responsive to the letter other than well i think because there's a direct action that must be that i mean does that sum up what you did no i think two things first of all i have cited the direct action statute and will the u s supreme court and  watson versus employers liability has determined that statute was his constitutional second the says that the texas cases were cited in the letter and believe under the circumstances of the case presented that if texas law were applicable which you don't think is the issue but if it were it would fall within the exceptions to the general rule because the basis on which the district court decided the  issues indemnity and defense were based on the same exact circumstance that i didn't see any corners analysis but i'll go back to look again at the district court's analysis to look like an analysis of the evidence an affidavit and people saying what view improperly and too narrowly framed the question it seems to have construed are allegations and are at the ends merely supporting the proposition that the well did reach the targeted bottom hole stopped there and instead he didn't ask is the reason that the well didn't get to the bottom hole location because it was damaged because it was damaged to sudden point that it couldn't continue to be drilled for that purpose to get  in and at the end when it was determined that it was no longer feasible to continue drilling that well the direction in which it was going was completely out of that where had been represent arguments but we spent the bulk of our time address heat so let me come at it this way is there going to be anything at trial that's proven that we haven't already heard about because the question i just disability is like what is the trial go prove and you guys and the judge said well it's going to prove no property damage and therefore we don't we can decide that now that's the essence of what he said and his disability analysis is like is there no way that you can a trial prove property damage an instance i think there was more than enough actual information that we developed as to the property damage claim you know whether you believe this is in fact property damage not of course sufficient information sufficient evidence before the court to find there's an issue of material fac complete and final fact record the discovery cut off in this case was january sixteenth two thousand and fifteen and these summary judgments which will this was a deliberate timing of how the insurers did this and also in working with the other parties to discovery we found the summary judgment after the discovery comes out so you're saying practically speaking whatever one could imagine there just isn't going to be any more facts are correct they just aren't that we're done with facts and so we've got all we've texas on the question of when you decide just disability in theory regardless of this case i believe there is although when we got to questions our first research and position was that a pure dri exception we believe applies in this kid's griffin is like you said it's looking at the texas dichotomy where you have an underlying toward suit with the alleged victim in the in the insured and you have a declaratory judgment action well that dichotomy doesn't exist on the direct action statute in this case if you're griffin the exception would apply because all of the evidence which everything that could exist did exist was in front of this dish record he looked at it and he said there is no coverage under this policy  and i think then again the duty to defend at that point was a little bit of a foregone conclusion because that the defense had been there throughout the entire case were actually a couple months from trial before these motions were filed so in this case the gryphon exception purely provides but if we move to the effect of the louisiana direct action statute i think the gryphon exception is unquestionably a put on because hey did you have any cases i mean nobody went out and did research sure i did i think there are no cases from the fifth circuit in louisiana that addressed this specific issue that you're asking i think we can do is we can look at the cases again and and they are  in louisiana we don't have that sort of dual competing in the cases going on in this case from day one the insurers were at the table everything was on the table all discovery was geared towards not only the liability of the insured but also breach of contract dispute between these two parties soltis they wanted something and they didn't get it because over allegedly drilled it seven hundred feet in the wrong direction there is no property damage which would be covered by the cost now the may be there may be other interest bows out there that over didn't acquire but into the facts in this case there was no property damage and there was no physical loss of use and we can even do forward some of the exclusions of if we want to get there but in this case breach of contract dispute in any way would implicate coverage under these policies there may be a tiny foothold there that davi see was never really developed in the case because it was always been alleging it was pro again the breach of contract is unquestionably not covered over these policies and that's why when they first pled the days soldiers never mentioned probably because this case it has never ever been about property damage until the insurance companies came in and said look let's say that's my concern is that they actually pled themselves in to coverage in the first amended complaint and that's the whole duty defended alice's i mean i think if we had done in a corner so properly corners we would have found a duty to defend so that's why i have a problem with saying the group an exception applies because the group that exception rests on when the same thing you know when you basically like you said you're never going to convert a drive by shooting into an auto accident or matter how much you gyrate and therefore companies don't go around spending money they're not required to spend and they have a duty to their pulsing holders other policyholders not to do that so they don't just offer defenses for fun they do it when there's a question that's why they do the reservation of rights and that's what happened here well and but i think we you're right from the very beginning of the police agent we felt that we judgements three or four months after they filed it amended petition maybe that would be the fundamental question for this court but that's not what happened in this case what argument is really that but for the actual trial we've done everything else i don't know that there is i will call i will mention to you all there are several cases that sable easy analogue generally provides that the underlying issue of why ability is resolved and the defen motor's eight ninety eight seven second six zero two so i'm not sure there's a difference between the two i think your argument is just procedurally we're in a different place than we typically are in these cases i think all of the cases but then i guess i would ask of rights or somebody's trying to plead into coverage and that's that's totally proper unlawful to do as long as you have a good faith basis to do it in the law and the facts the lawyer the plaintiff's lawyer absolutely should do that frankly if he has a good year she has a good faith basis in a long back so i don't understand why the fact that they plead this is a negative i guess any answers the question mean the fact that two parties have a contract to me doesn't answer the question of whether there can be engine that's a whole line of them are homes and all of that stuff is that just because somebody is there by my contract and not just happened by cause some harm doesn't answer the question whether there can be coverage for that drug and in this case like i said we were at the end of the road discovery was completely everyone's deposition which was sent in stone their testimony was and stone and not a single one of them could identify problems in fact when you asked them they said why can't contend literally we asked their their harvard business guy their director you know to identify what was physically damaged in this well and his response was i can't contend ok so what do you do what do you how do you respond  seat if you look at the last paragraph of his affidavit and records of nine he doesn't ever say that any of the things that are problematic when those things exist he doesn't ever say they exist in this case he says this may happen this could happen this increases the likelihood of of this but he never says any of those things and occurred in this case and so when the district court receives all of the evidence that is going to come into his record in  months at the trial it has everything you would could possibly imagine in the underlying suit that's referenced in the cases in texas and so it looks at everything and it says under no interpretation of the facts do i find this property damage and there is no coverage of a possible had the i think the district court got to that conclusion and you realize if there's no coverage there's no duty to indemnify and that there's no duty to defend at that point and that's where its rulings i think basically took the whole ball of all the claims against the insurers and said you don't pass the threshold issue we're done and so let me ask you this what does  guarantee of knowing i know and that that actually is the reason for all this whole development of case law you were in texas about lamar holmes and all of that and actually the court never decided which law flies on not talking out of school by talking about texas law here but is because you have these c d o policies that end up not covering anything because insurance companies say oh we're not a performance upon we're not a warranty company which are the other things that could possibly be in play and yet you have contractors out there messing things up and causing things to be injured and saying yes we are covered under a c t o policy that they supposed to be comprehensive but i think that's the that's the critical section of the court question causing things to the injury and in this case there was nothing that was caused to be injured and i know they're going to get up and say well we had we had doglegs and zigzags but when you are direction we do it well you're going from surface to a point that is twelve thousand feet and about another thousand feet to another direction so you're literally corkscrewing in some ways this whole well to get where you want to be so the idea that you have dog loads and zigzags that's actually what choir in the directional azmi is changes when you're going down to the desire can either argue they were gutted and exclusion but protect the no cover all or on the other hand they've got the merits who was say all of those cases are trying to prevent when you have a dual cases them of an underlying suit and if your case is in louisiana the said exact same thing you know i agree with all that all those cases even in a direct actions actually where those two are merged together the hadn't come out by january sixteenth two thousand and fifteen it when going in that record and so all of the facts were put in front of him and he made the cover determination of the time that i do understand there is a there's a still a question of why ability between outright the complaint was amended it tracked the language of the underground resources and equipment has a good dorset look at the eight corners there was a duty to defend we reserve rights because some things were cover some things were not covered at that point the name of the game is to ask the question at every single deposition was there damage to the well was there damage to the whole war was there damage to  hazing was there damaged and clint was there damage to any resources and every single deposition in the answer to that question was no have all people who were identified as persons with knowledge of relevant facts been deposed  discovery discovery did deadline is complete that wasn't my question my question is whether everybody who was disclosed as a person with knowledge of relevant facts has been deposed i believe  because the argument as nothing could happen a trial that we don't know about but if you had ten witnesses listed in a them were deposed those other two guys and i had that experience as a lawyer and a judge or one of these other two guys comes in and says a case breaking headline and nobody to blows with them so then that would not be inconsistent with the discovery deadline and all that to bring in that witness so that's why i'm asking because it seems like your your co counsel or mr lewis is resting on the new ssion that there just isn't a shred of evidence out there that can come up at trial that we haven't heard that we or that we are aware of and the need to before the motions a person rejection were filed if this is going to trial the same questions will be your question is when you have a duty to fan something to cover and some things are not yes there has to be there has to be evaluation of the facts in the liability proceedings in the new england case that it's premature until until the defendant is cast in judgment and how do you answer that it's see it seems to me let me just put it this way and i don't purport to be an expert on always insurance law though i've had to become one over time it seems to me louisiana is a different than texas on this point on this point of prematurity but that's why we sent the letter so you all go out and do research and bring us cases which i have yet to hear one other than that it's not unconstitutional to have a direct action statute that answers the question we asked i believe that the reason why i couldn't find any case  it is because that's just the way it is down in louisiana it's covered in liability it's all the same actually because of the direct action statute so there's no underlying action that you have to wait for the resolution of as to whether something needs to get a judgment whether there can be a determination on identity i believe that that is not the one we see out there can be a judgment on the damages once there's a development of the facts and the facts are that you know what i'm going to do because  i just don't decide cases based on well everybody knows this i decide cases based on statute and case law and authorities and i think my colleagues do as well so i'm going to give everybody till monday at five o'clock june thirteenth to file a letter briefs on this subject of just issue building both in response to the letter that was sent out last week as well as to the cases that i cited today as well as to what everybody knows in louisiana about direct action actually finding cases or even a treatise that would address this would be helpful because i'm i'm sorry i can just go on what you think now i made a big speech and took some of your time so give me a few extra seconds if release point what it is obese did that cause this so called defective work in other words whether they themselves were doing the work or they were directing the work or their ideas were the reason for the work it's a little bit confusing to me i don't understand that they were holding the thing that went wrong i thought they were telling the people what to do is that not correct i believe that o b e s was peter actually thriller and having some contractor working with them and  a ninety eight seventy second six o two my colleague also had another case that i want to me to mention to sixty seven f subsecond six zero one the westport case as well there's a site in the original letter to you all that came from the clerk judge haynes others is because the district judge's findings of no property damage and apparently no no  signals to address the course judgment it's necessary to look at the question of property whether there could have been property damage under the fasces as alleged and the other i mean what's interesting here is your public concedes a duty to defend didn't move for summary judgment on duty to defend so any judgement on duty to defend would be unsupported by any request for the hat and now you're coming in for liability at trial and we don't know that so i'm thoroughly confused to be quite honest as to like i'm who represents whom here because people would seem to be making the arguments that i would expect them to be making  oral argument to argue wasn't helpful from a disciplinary standpoint in your head i don't mean discipline like i'm disciplining you but discipline of writing makes a difference in thinking so maybe the discipline of having to write something will help you all analyze this and i'm not i'm not going to hold you to saying it is used to shoot pool if you go and find cases that say it's not you can confess error on that and say so and of course the same for the opposing side has to come in and tell us what they find so i'll leave that on that if you want to make get what do we pay for c g l policy for cases which is why we have such a long series of this stuff in texas and keeps a lot of construction and insurance lawyers employed in texas which is of course a lovely thing all right thank you very pretty shaky isles arguments and we'll look forward to your letter briefs and we're going to take a ten minute