know hearing about group is is reassuring i don't know the answer to that question i can submit a brief on the united your honor to address that i'd like to but there may have been there would be darwin policies commence on august two thousand and six and that's the inception date of those policies i do not know and i don't believe there's at that time now if that was where and actions are filed against a government entity isn't it responsibility of that government entity at that time to notify the insurance carrier i would agree with that when you have an action that's that within the coverage of the policy in this instance we do not believe there was coverage and no one has disagreed with that position that we've taken in our brief that there was no coverage planes here it's a very broad relief planes language and the word claim is very wrong i didn't get your brief real dispute as to why you don't fit percival the question of this being a related claim is a red herring because you don't get to that issue you have to interpret the policy through all its provisions you have an ensuring agreement and there's no dispute that the civil rights action that was filed in two thousand and ten falls within the coverage provided by the two thousand and ten policy there is an exclusion that deals with prior claims that are filed the court doesn't rely on that exclusion the court reads it out of the policy and that's the determination that's the test that should be avoided there is a provision that says if another cla and therefore there's no coverage and that's what the denial letter said well how do you how does that not correct the state because the policy the purpose of the policy and if you consider all the  then you know for coverage and we're not going to convert that's a prior claim exclusion the related claim issue is determining what limits you get if i'm a professional engineer and i design this building and i don't properly calculate the structure and this roof falls down and injures me and someone else i sue you in two thousand and nine someone else suzhou in two thousand and ten what the related claim provision says is that i only get one one million dollar limit for that those two claims because they're related so that's my limit of liability for that and on the other side i don't have to related claims will be deemed a single claim and only one each claim limit of liability if only one return ship will apply that's the only place in the policy that an arms related claim for use in the terms because that's how the policy would you apply correct interpretive principle that's the purpose of the related claims language it's not to be used as an exclusion you have an exclusion that applies to prior claims and if you allow this to circumvent that you've read that exclusion completely out of the policy you've read the saving provision in that exclusion that says you go issues f or states that all related planes will be treated as a single claim made single plane made when when the earliest of such early planes was first m or when the earliest of such really means is treated as having been made in a cordons with condition after two whichever is earlier how is that and therefore made exception how is that all that all that's telling you was which policy do you look to to determine what your limits apply bill you are now if you look at today or do you look at the policy from three years ago and the policy can away by this view but no we didn't have an opportunity the original motion to dismiss didn't discuss mandamus at all it's submitted for the first time and argued for the first time in the reply in the reply to the daintree basis to make a determination as to related to that is that at the heart of your point yes yes i mean we had there was ongoing discovery at the time even with the made we were denied the opportunity to broker discovery to determine what the basis of these policies being written we were denied the opportunity to do reasonable expectations coverage to put in evidence because this motion should have been converted into a motion for summary judgment if you look at the cases that they rely on when they use a prior notice exclusion they all those cases all rely on prior notice exclusion none of them used this on those exclusions they don't rely on on that issue all we were denied the opportunity to address  in its construction of the policy and i want to respond to what i believe are some either misunderstandings or mischaracterizations of the nature of some of the policy language and then second i'd like to respond to judge smith's question about the procedure and what evidence was considered by the district court first of all i think all the parties agree and the district court properly held that the starting place is going to be the policy language and if i can just have a moment to walk the court through a couple provisions of the policy that are significant because had stated although i think a judgment value corrected him that there was only one place in the policy where the related claims language issues he said that that was in the limits provision and that's not accurate but i'll get to that in a second but the starting point for coverage is going to be under the ensuring agreement in the policy that's found a thirty four in the record and here it says in short that insurance companies will pay on behalf of the insured loss that the insured is legally obligated to pay what  made against the insured going the policy period there's been much talk in the brief about the insurance company or the district court reading language out of the policy and i'd respectfully submit that it's actually insured that's reading the word first out of this policy this is  it's a very broad definition of claim and that's on page eight thirty five of the record and the definition of claim in this policy includes among other things any written demand for monetary damages or non monetary relief and it also includes under part three of the definition any civil proceeding in a court of law or equity the policy then don't want to know when you're talking about this civil rights action being filed against the  of related things you start with the definition of related claims which i was going to get you next which is on page eight thirty nine of the record it's the find extremely broadly in the policy as all claims for wrongful acts based upon arising out of resulting from or in any way involving the same were related facts circumstances etc etc were the same were related series of facts or circumstances whether related logically  the language of the related claim definition this policy is broader than the language that's been discussed in the case all that we've cited from third circuit and from pennsylvania supreme court is to shoot arising out of or relating to broaden that case will certainly applies but this provision is even broader than that because it uses additional language discussing it but here's the important point where i think my colleague misunderstands the policy the related claims language is then discussed in two different places in the condition section one is on page a forty four of the record condition a limits of liability and he's talked about how in that section there is discussion about how the related claims will be deemed a single claim and there will be one limit and one retention that's fine but he ignores the fact all the judgment i think of all this was attention that the related plain language is also discussed in condition f which deals with notice timing and in a relationship  and the significance is here and i think this is something that judge roth touched upon in her first question is that it doesn't exclude coverage but it does is it determines which policy response when you have related claims or all related claims should be treated as a single claim made when earliest of such related claims first need when you go back to the ensuring agreement and you have to determine when a claim was first  this provision tells you that if you have related claims they will be deemed to be made when the first claim was made it doesn't necessarily exclude coverage here under this act there could have been policies of this company that were different but you  back to that correct now i think was what judge roth was asking about is that if you went back to the policy in effect in two thousand and five or two thousand and six and had the policy why it would have been implicated had notice been given everything else and insured under this condition gives notice then locks in coverage for related claims that even happened subsequent to that first policy period so to characterize the lead claims provision as an exclusion is inaccurate it's not it just places when the claim is made in some instances like this the net effect under this particular two thousand and ten policy is to exclude coverage but it just places it back to the earlier one go back that policy call it covered now i'd like to use a moment to talk about chestnuts comments about actually what they did in response to the motion to dismiss i believe is put there have been as complainant issue by making misstatements to the court if you look at their response in the district court to the motion to dismiss which starts around  eighty nine they talk about in their counter factual background first of all hate page a ninety six that the background set forth by darwin it's free or darwin quoted at length the factual recitation of the court in the underlying motion to dismiss they said it's all set forth in that opinion it's on the on line action they don't respond to any of it they don't see any bits inaccurate they don't see say they need any discovery they then go on to discuss a number of the letters that were described in the denial letter of darwin they don't specifically talk about me and them simply what they do say and this is wrong is that the remaining pre conception data allegations are complaints about a third party a request to investigate  request to enter a written denial and a belief by the author that the borough was not enforcing its zoning ordinance they are not a lawsuit this is what they represented that it would work this is page eighty ninety eight of the record they are not a lawsuit they are not a claim for damages they are not a request for suggestion of a claim for damages and based on that mis statement to the district court in their opposition to the motion to dismiss they argue that the mandamus complaint and everything else was not  i think was more than fair at that point time for the mandamus complaint to be put in front of the court all the court had at that time was the summary of it in the denial letter and that's it's a public record that's what was done it was attached to the response in support of the motion to dismiss the reply in florida and the court had it at that point in time but again it was in response to factual misstatements that they made saying there was no complaint saying there was no demand for money it's a public record at any point in time in the case a court can take judicial notice of public records even a it will be six stage it's rare it's unusual but it doesn't mean that it's unjust or denial due process here this is not a complaint it's from some third party actions which they were not a party it's not a document that surprised them or sandbagged them it was prominently discussed in the denial letter it was in fact mant mention although in passing in the original motion to dismiss papers filed in this case by darwin i believe it's on the end of the br bad faith section but they do mention the fact that part of the reason they didn't engage in bad faith is they reviewed a bunch of documents including the letters including the mandamus complaints or there was some reference to it it certainly wasn't a focal point of the  but it was a matter of fact public record as to why he was judged comment shouldn't this have been a motion for summary judgment again the answer is no there's no disputed fact here there's no real factual determination of finding the court needs to that the mandamus complaint is a document a writing a public record speaks for itself the question before the district court and now this court is what is the legal significance of that document when compared against the policy language and considering the related claims was then cited by the district court in this case with a certain place all of those documents at issue and those documents in turn referenced the mandamus a complaint but i think the biggest issue is there's no surprise to them it's a public record for which  pay and properly took judicial notice and there's no discovery that they would meet they talk about this coverage but the discovery that they talk about is as to their reasonable expectations that has nothing to do with this issue second you don't even get  secondly reasonable expectations typically applies in a situation where you have a consumer and you have something like a fire policy a life insurance policy some sort of noncommercial insurer that's not the case here we have a government entity that's the insure and the policy is not him because finally let me just take a moment to address the separation of insurance provision because they make much in their brief that there's a separation of insured provision and because of that the fact that the mandamus complaint correct policy insures losses pertains to want flacks but the separation insured provision first only applies to explosions here what we've argued and what the district court found is that there is no coverage looking at the insuring agreement and the condition pertaining to w made secondly the separation of insured provisions refers to action urged or missions of insured it doesn't speak to a situation like this where a third party makes a claim against insured it doesn't say anything about that  and even when you look at the definition of related claims that doesn't speak to a playmate against any particular insured or anything like that so i think that perhaps i related page that saying i'm sorry doesn't even say involving the same parties to the  find prevention correct but this one is very broad in this case so based on all that your honors i would ask that you affirm the district court ruling the district court reached a correct coverage decision in this case it properly considered the mandamus complaint in reaching its decision even if the court were to find that the court should not have considered the mandamus complaint because this was a replay of the six motion it was simply harmless or at worst because this would have been then before the court again on a motion for judgment on the pleadings you still wouldn't get the discovery they haven't identified any discovery that they need relevant to this issue and at the end of the day neither justice nor due process will be served by remand in this case back to district court and forcing the parties in the court just to be do these issues again your eyes a little bit more to deny them coverage you have individuals here who are not being asserted there's no claim that there was somehow a claim being made against them that somehow should be used to exclude coverage threshold burden of determining that these claims were fact related or not really you have different parties involved you have different acts you have you have different time you have different beliefs being so well it is as an exclusion it needs to be interpreted strictly against that and there are other cases that if you have looked at the same issue and you look at the cases that we've cited  directors with these types of provision that any time they get a letter a postcard an e mail from someone complaining about a pothole complaining about the police harass me that you have to put that even though it's not a claim it's not a lawsuit there's no coverage they have to send all of us to this insurance that's five years from now when a civil rights action is brought fleetly in totally different facts insurers are going to say well didn't you know in their civil rights complaint they talk about how the borough didn't fix their pothole in two thousand and five that was a claim you should have noticed us in two thousand and five you've made the coverage  case i stumbled over this that the the what we addressed in the opposition was that letters were not a lawsuit that's what we address we didn't invite mandamus we had no opportunity to explain to the court why and i know my time's up if i can just finish this thought we had no opportunity to explain to the trial court why the mandamus action was not related we explain why the letters warrant and the district court rejected that they didn't reject it because there's nothing in the opinion that he didn't rely on that he relied on the mandamus action which was first submitted and argued in the reply we didn't get an opportunity and it's a summary judgment we would have gotten an opportunity we would have been a discovery on the policy we would have been able to convince the court that he can't do what he did which is read out sections of policies that are directed for the specific issues so i apologize for going overseas a right thank you thank you very much