real issue bottom line you should do what we're looking at here today we're talking about in this case is really whether or not the insurer is entitled to get what paid for that's really the bottom line what's going on there's no question involved in this case with regard to whether or not this was the underlying claim was a covered event it clearly was there is from our perspective at any rate no case law supporting the steadfast position that there should be some sort of exception to the notice prejudice rule that applies to their policy in this particular case they are essentially asking this court to create a new exception under california law you know i couldn't find a california court of appeal opinion or california supreme court case that really address particular notice reporting clause or endorsement provision there is no case in this particular context what you rely upon is the sort of the overall writing public policy concern that's articulated in some early california cases guarding general notice provisions that's correct but isn't and that's kind of what the district court did here but isn't that a little bit different than what's going on here akin to the cooperation clauses they are providing additional information that is needed in ministry of leader or to facilitate the handling of the killing the course that have talked about this take a look at whether or not these requirements have an extraordinary effect on coverage if you look through the first read the claims if if they trigger coverage in some respects or extend the coverage to a kick to a claim that would not otherwise be covered then providing the insurance company with additional information to handle the reporting requirement intended sort of cut off the tail of the teeth rag you know claims the main policy yes that's exactly what his purposes and that's why in those cases and that's quarter they had to but that's up to the you don't add any coverage with those things all they're doing is reporting they're saying ok if they aren't even talking about an individual case the reporting requirements say give me a total of how much you paid out for all the cases list all the but because there isn't as i are it's just like having an underlying layer an excess layer of coverage at some point there may be some claim that rises into the next level and that's what they want and they said no that doesn't make any difference so the answer to your half your question is no it doesn't matter so that in the public policy trumps that however the you know the the insurer if if there is a breach of these reporting requirements they have an alternative available to off and said that pretender voluntary payments that the rule doesn't contain those pressures will doesn't come into play and they said that's because it doesn't involve the insurance company trying to escape life all liability on the on the coverage so it goes back to the fundamental question of whether or not we're affecting the entire coverage of the car coverage is being challenged it goes back to the public policy and you know in california we don't want the insurance companies taking a technical violation and avoiding coverage if the a showing of actual prejudice so it's a pretty reasonable position actually so that i think that is the bottom line is i think the supreme court of california has i mean they come out they're out there with their opinions on that and there's been a number of obviously lower court great deal of time on these issues with regard to the implied covenant of good faith and fair dealing it's a really simple thing actually that benefits are due on the policy or withheld and then the question is where they were withhe is the section want is the section e that we talked about earlier it's clear that it only applies the requirements over accumulate requirements only making supporting requirements concerning the status of all the claims are being covered and yet add here to the united regarding the harm i think that's probably true because i know there are states i can't name one but i know there are states that don't have the rule again unfair trade practices the standard is examination of the impact on the victim balanced against their reason to verge on the reasons of their cancellation we don't believe they've given us good reason there's clear impact on her client s m s they deny their insurance coverage the last minute and the same with the stop and waiver insured negotiated and paid for was a policy with sci r and it has high r indorsement in unambiguous language said not only that they all comply with this reporting requirements which they proceeding coverage that's what this case is about is whether california has a public policy the bar sophisticated or big companies from negotiate in the contract with unambiguous explicit limitations of average i don't think we should be looking at claims made in occurrence cases as much as the california supreme court authority but the parties can contract and w there a public policy that prevents a carrier from posting the noticed reporting requirements on the insured as a condition to press precedent to coverage without requiring proof of prejudices that advance is there or that public policy and the cases that have applied and developed the notice prejudice rule have not said the public policy prevents the parties from contracting  the context of the typical c d o form no notification provision just like this policy has on the body under the commercial general law ability form that says you'll give notice as soon as practical you know i stand back and look at this i'm not the underwriter and frankly the recent cases are boy you've been you've been thinking about this walk a lot monger than any of us have you know so you're deeply involved in insurance litigation insurance lots premiums the excess carrier we don't want to have to open all these claim files and adjust all these little claims all over the country so you were insured your going to do the claims that adjusting the primary carrier would have done and primary care is normally against public policy to put notice put a reporting requirement as a condition precedent to coverage without proof of prejudice and let me give you an illustration of why i can prove it's not against public policy in california if you could not convert an occurrence coverage to this policy by putting up a limitation that ok we cover courses but if you don't report per this reporting endorsement you're not going to have coverage underwriting because you can't sell a policy in a state that hasn't been approved by the insurance commissioner in this california insurance policy as a matter of public policy if i heard i think i heard your question here i don't even think this policy was issued in california but because there is no conflict of laws is speculation we can't roll back the clock i don't know what the case could have sold for i settled for the big and i don't know what they could have done and that just to me goes back to why it is reasonable to be negotiating for a you will do the reporting that we expect as a condition precedent to coverage where there will be no coverage because how are you supposed to prove it now i don't know what wasn't but this wasn't a good settlement that wasn't as good as it could have been  but i don't know what was i mean the you michel the man without any discovery being done was two hundred fifty thousand dollars if everyone thought there were going to be sweeps streets that would vitiate liability in the plate it might have thought that too when he might well have taken a substantially lesser amount but if you're holding the carrier to the notice prejudiced rule so to speak despite the fact it says prejudice is required under this policy under that line of case law i don't think you could meet the burden significant it's important my client it's an endorsement they use but is it significant in california i have never seen a reported case with that i don't know of another california case frankly i think most sophisticated insureds comply with the reporting requirements in their s o i are endorsements so we don't get to the situation when you ask about should we certify to the california supreme court i don't think there's any question but the california supreme court that decided rosen that sent collapse you can change the definition  actual fall down in pieces we interpret the language of the contract when it is explicitly clear there's no countervailing public policy consideration that's been recognized i'd love to be in front of the california supreme court on the issue because i'm confident they would agree i don't find any ambiguity in this contractual provision that's the same court that held under foster gardner suits means suit you know you asked that question because i've been a few panels over the past year where we and insurance scores i've been talking about the cross appeal not the peel to maintain my client's denial of coverage by just reading their own contract was bad faith or an unfair for sewing to recover benefits still under the policy and frankly we didn't know the claim and we shouldn't have to pay the  current policies but they put a special unambiguous limitation on it and if you step back here there is no argument of any ambiguity there is no argument that there was not multiple breaches of the the reporting provisions in the policy there are no arguments made that this is a case for an exceptional at what it will excuse or deviation because you know it's not like there was a recent case that came out  and the insurance company and never offered him a sixty day reporting tale and the courts said no that's unique that's harsh equities going to step in here and give an excuse this isn't that kind of case i mean there may be a hard case where equity from failing to comply with the reporting conditions then what could stand or cement i mean what what the recording conditions are meaningless because if you get a notice of a claim the insured could always say you could are investigated it yourself you could've