threshold issue presented by the mobile's appeal in this case i think the issues that your honour's probably want to hear from us about are the threshold issues set forth in the court's order and i was hoping to address them explain our position on those today those threshold issues are the question of whether or not a stopping selective from asserting the tender defense and the alleged  problems with t mobile usa as tender would result in an expansion as the trial courts or put it an expansion of the coverage issue and whether or not t mobile had made up the requisite private facia showing of case about a stop will stand for the proposition that a stop will may apply to bar an insurer from asserting defenses that were not initially raised in its coverage tonight the question then becomes  whether the a stoppel is applied to prevent the insurer from asserting a technicality like we contend occurred here technical defect with regard to the underlying tender for example or whether it would result in a subs on this the language of that e mail did not raise that issue the t mobile is not entitled to a defense up to that point all of the correspondence was between t mobile are two corporations which of the we have to believe was t mobile you asserted yes let's break that down your honor there are a few issues with with that allegation one is the clear obligation under washington law it's part of t mobile usa team mobile is not additional insurer of the policy is that your question is is that a sufficient explanation of coverage in the responses it is not under washington law because if you are going to take the position that that statement is enough you have to measure it against the wax with all due respect and the wax require a detailed explanation of the policy terms and conditions so as to provide reasonable notice to the receiving party of the assertion of the defense that you're asserting i'm not sure you've answered my questions i will your honor i will and so we have at it and i would direct honor to the seaway case it's a judge jones decision from the western district where the the denial is almost identical to the denial at issue in the cohen e mail just a blanket statement that you do not qualify as an the policy and what judge jones did is look at the wax look at washington law in washington law applies in this case and confirm that that kind of blanket statement without an actual explanation of why you are not an additional insured that is what is required under washington so is your is your answer my question that the mobile didn't really have notice that it needed to  is your argument that that e mail simply was not sufficient to inform us that there was a dispute as to which team mobile entity was employed yes rather that what you're doing that is the argument because there is nothing in that e mail that refers to a distinction between the parties there is nothing in the email that complies with whacked twenty twenty four thirty in terms of setting out the policy provisions for example we talk about this in kind of an ethe have done and the testimony is quite clear on this your honor we submitted the testimony of the claims examiner who denied the claim he testified about the substance that e mail whether it was sufficient whether it provided the requisite notice to t mobile of the actual basis for the denial and he testified under oath it did not so we're not talking about just kind of this in theory a lap location of  whether that notice is is sufficient in isolation we actually have testimony on that issue we have testimony on that issue from the claims examiner and we have testimony on that issue from the receiving party the answer to the question is you did not do it because you thought you didn't have to be and the answer of the question is t mobile received that e mail after two years of requesting an explanation of why it was not getting a defense it received a one line explanation the claims examiner at issue for that that file has already testified under oath and admitted was not sufficient to put t mobile on notice of an alleged inadequacy with regard to the tender his testimony is clear we also have the subsidiary in order to protect the parent company from liability that's one of the reasons you do that is right now i think i think it's important to keep in mind the reason why the claim was tendered in this fashion is this typical of insurance th team mobile usa had in hand that was supplied by selective that indicated that team mobile usa was the insured party for purposes of submission of this cause well but that assumes does it not that there is an existence another contract the field services agreement that stablish is the contractual relationship between the company that did the actual installation work and t mobile ne i mean this may be a question for selective counsel but i found the documentation to be somewhat ambiguous on the one hand it purports to name the team mobile as an insured but then has a whole bunch of language seemingly excluding professional services and anybody that doesn't have a contractual relationship with you know great yeah i get i think the record is clear that t mobile tendered in this fashion we have a declaration testifying to this this fashion because it was basically instructed to do so pursuant to that certificate of insurance and that if selective had actually raised any distinction between the parties at all it would have been very easy for t mobile how else should ms bauer i'm looking at your two ninety seven august nineteenth two thousand and fifteen email yes how else can you interpret the sentence that in which she was told to mobile does not appear in the selected policy named as an insured it does not qualify as an additional insured that is why selective is not defending it is that second sentence that is key the assertion does not qualify as an additional ensure that the question and what washington law requires is an answer to that question is why ok if there was if that e mail had draw a distinction between t mobile u insurer because it's not named after the insurance but the policy has a named insured the primary insured innovative right and then has an endorsement in additional insured indorsement which in essence gives whoever the endorsement the status of being named insured as a no it isn't you would know you gain status as an additional insured so that first sentence is irrelevant but doesn't that mean that the insurance policy covers the named additional insured if there's a claim that there is no named there is no such thing as a named additional insured you have the primary insurer that's named in the policy you have an additional insured indorsement and so is it the purpose of the endorsement to provide initial insured indorsement i'm not asking just in this case i just i'm asking you sort of general insurance law i thought that was the whole purpose of a letter writing plays no insurer so you have an insurance policy it contains a primary insured coverage as the insured exactly right and so the question is was that notice sufficient under washington law cancel i'm curious about something assuming selective change their position and assuming there was prejudice from the changes ition who would have suffered who would have suffered as a result of that prejudiced t mobile is suffering policy and then t mobile usa suffered as a result of the fact that i had to pay those costs i thought the insurer or agreed to defend with a reservation a right no your honor that's the heart of the the insurance company at least as the innovative except the tender with a reservation of rights yes i do defense and ultimately settled the claim with the owner of the building you know we  settled the claim and provided a defense to one party and didn't provide that defense to the other but but your damage to answer judge black's question is the amount of money that the mobile had to pay in its own legal fees that's correct it's the half a million dollars in legal fees that when unremember and so again the question is was that notice sufficient under washington law it is clearly not and we have the seaway decision that is directly on point from judge jones saying a blanket statement that you don't qualify as an insured does not comply with washington law and at a minimum and a minimum the question the sufficiency of that notice was it adequate to put t mobile on notice did t mobile suffer prejudice of that that's a question of fact and we already have in the record unopposed testimony from both the claims handler at issue and t mobile that the notice was not sufficient mr parlin unself the claims examiner responsible for this file so your argument is we should reverse the remand with directions to grant summary judgment for because there is not a material fact as well if you have testimony from the two interested parties involved here isn't the answer yes that's what i that is a reasonable conclusion ok but at a bare minimum there's a question of fact about that issue i thought you just said everybody agreed well everybody does agree but the going to be a material issue a fact that a jury needs to pick up right on the question that you asked counsel with respect to that issue of notice and why they didn't the men did why didn't they simply plead a case against t mobile ne i respectfully submit the evidence is very clear that they had requisite notice it is it's it begins with and i think just to point out some important aspects of the question from the court bower in the record at page one fifty nine she she sends an e mail to mr kohain who responded via the document you referenced judge coleman at two ninety seven her email it should be noted she is the insurance and claims manager for t mobile one of the largest telecom companies in the world and she  asks for for understanding why selective is not defending but importantly in her subject line she says request for immediate defense and then that he on behalf of t mobile u s a so it is a specific request for t mobile usa coverage as had every single communication to selective before that they always asked for coverage on behalf of t mobile named as an insured it does not qualify as an additional insured that is why selective is not defending team mobile and it doesn't say why you are qualif she possessed of as of the date she issues her her inquiry to select the she is possessed of the field service agreement which is in the record at page four ninety nine the field service agreement july eighth twenty ten was one of the first documents that was sent to selective with the tender a specific tender that agree that given the totality of the evidence that was possessed of t mobile usa their position their their position in the f s a of where they had they had sent this document to selective in this is to answer your question judge bay i guess what you're saying is you agree the ju no no i don't i think there's supposed to be an explanation but where what we contend your honor is that at that point in time there was there was a sufficient explanation of these a v the information that had been exchanged between the parties and visa v mr coe haynes noticed and some subsequent communications that occurred after mr coates notice but i think importantly for the court the f s a that was sent with the original tender t mobile usa asks for coverage the f s a in the record on page five  three says that the mobile usa goes out of its way in this document to make it clear that it is not a party that the words in section five point two of the contract say t mobile u is not a party to this agreement and that in no extent no event will t mobile usa have or incur any liability of any type or character under this agreement so if that is then connected to the clear and unambiguous insurance policy language where for an additional insured to qualify automatically as the court correctly stated that's in the record at page five seventy six the language in the policy says who is and insured is amended to include as an additional insured any person or organization whom you have agreed in a written contract or written agreement to she had that language and she also had the field services agreement and that is exactly the basis for mr coe haynes notification now some subsequent communications i submit are also important for the court's consideration there was a letter from mr moore on august twenty five twenty fifteen where he again specifically this is in the record on page eight hundred his request for coverage at that point is still asking for coverage for t mobile usa inc only even after the cocaine email was sent up he mr moore cited in his letter on page eight zero one of the record that t mobile has incorrectly claimed that t mobile does not qualify as an additional insured under the policy so it's clear at that point before the filing of the complaint counsel for t mobile clearly understood  was did not qualify as an additional insured or at least that that was the position position that selective had advanced and to further time that not up was a letter was there any indication of august twenty  the washington insurance fair conduct act and the co hanging e mail is clearly referenced in there and it's at this point again to connect the f s a with the insurance policy language which is clear and unambiguous there is no other way but to understand that selective had placed the mobile usa on notice that it was not it did not qualify as an additional least in part your question whether there was an ever any questions tease down on who wore you ten during the one b half mr tindall went through on in the record on page eight zero five he essentially says to mr moore what we've walked you through the policy he quotes that in his letter he says that in order to be an insured you have to show me that t mobile u s a is has a written agreement with selective named insured innovative and the only document you've ever given me is one that says t mobile usa is not a party to a contract with innovative help me understand it was a it was a that was clearly set forth in fact mr mr ten o yes mr moore and on page eight zero five with the record you have confirmed that t mobile made the tender on its own accord not on behalf of on that point if i am mistaken please advise and immediately so counsel for selective is raising the issue as to where's the agreement where's the coverage because our position is crystal clear that mobile usa does not have a written agreement i me of cut off mr moore as to another issue in this case and i'd like to give you more time to talk about it but what about the certificate of insurance by your agent say th was indeed covered how do you do how do we handle that i submit the judge roebourne handle that precisely as it should be and i know this is the novo review but he provided an excellent guide in his decision where certificates of liability insurance the judge pay and the wanted issue here is in the record on page six forty one it is clear that there is disclaimer language in the  insurance and it says quote this or to if it is issued as a matter of information only and confers no rights upon the certificate holder this or to fix it does not affirmative or negatively a man and extend or alter the coverage afforded by the policies below this certificate of insurance does not constitute a contract between the issuing insurers authorized representatives or a producer and the agent's real or apparent authority is that contradictory to what you just well the courts around the country that have looked at this your honor have dealt with that grappled with it and  they look at the agency agreement the agency agreement between selective and vandyke here  in the record at page ten sixty three provides authority for that agent to execute an issue binder's policies and certificates for such insurance or bonds accurately reflecting then current terms and limits here the the agent broker did not do that so it wasn't within their authority to issue an inaccurate certificate of insurance it's why in these record forms this disclaimer language is in there so the court this court moves toward what its instructions are what the ninth circuit court of appeals instructions or to it district court judge sitting in diversity when you're trying to predict what think there's a real distinction to with this certificate of insurance if you look at the the courts around the country how they've dealt with this and we submit that with a b c d and proselyte weight which is the washington supreme court that there clear clear direction that washington is heading that washington would agree with the majority of courts around the country but an important distinction this certificate of insurance that t mobile usa claims to rely upon to be confused by even though it has that specific disclaimer language the certificate is dated january eighteenth twenty twelve the work that was performed your honor the cell tower work when the building in new york city was performed in the year two thousand and six the courts that go toward the minority view around the country in the vast majority the circumstances commendable relevance of that the minority of courts say that because that set in motion it permitted the work to be done it then in their opinion trumped the clear disclaimer language in the service in the certificate of liability insurance but in in this circumstance where we have the the work going on in behind us matters is the certificate of insurance in place at the time the claim is made two thousand and twelve certificate i'm sure it's also worth noting there were six prior certificates of insurance issued by selective that contain the exact same language they're also in the record on the agency front your question judge bay was how do we square the conflicting washington law that clearly establishes under chicago title the fact that insurers are bound by their agents representations like this and and this certificate of insurance and the answer to that is sumitomo that case clearly lays out the path for squaring of those two things the postal wait case that is rel on by the trial court and selective has quite literally nothing to do with this certificate of insurance issue in this case that the post away did not relate in any way to a claim assume it was an additional insured ensure well again i think your with all due respect i think you're mixing apples and oranges and this is an issue that the trial court resolved judge of our resolve this issue and said and i'm paraphrasing there's absolutely no inconsistency between t mobile us asserting that it could be an additional insurance on the policy and it's contention that the underlying plaintiff could not sue it directly on a contract to which team mobile us was not a party selective has not challenge that finding on appeal is it a varity for purposes of peel so well i mean no disrespect but that it wasn't taken yeah that issue is not part of this appeal and so they've raised it so getting back to the evidence on the notice issue because that really is the core issue that i hear your honour's for to start with the law on the issue and it's the way again and i'm quoting the record to be clear on this as i possibly can judge jones ruled that fireman's fund who is the insurer in that case sole reliance on the on reasonable assertion that seaway the insured was not an additional insured that statement alone was insufficient as a matter of law and he cited to whack to eighty four dash thirty days three thirty four that proposition so the idea that the question is whether the kohain email provided sufficient a sufficient explanation of the fact that selective was taking the position that t mobile us was not additional insured that's the question we got your