seventeen years or whatever there are all kinds of ways that people invoke it and that's the question of what's going to happen here is this poor going to set our rules for how to be to defend you know but here we have an additional fact which is they wrote a letter saying we are correspondence so that letter shows that there was no reliance on the statement mr smith said about not presently making a claim that the my point to point and i'm concerned that is there also appears to have been no relian happened was in the agreement between the purchaser and the seller between the receiver and and purchasers element it obligated zalman to clean up i have seen and i saw that there was an obligation doesn't mention the letter of october twenty second which is the one that everyone's referring to it mentions of letters that everyone else took every other insurer took as asserting no expectation of a claim and whether the don't know what i do know is that three days after the letter of october twenty second you'll see on the record cigna had a telephone conversation with john smith or mr smith and he said you know he asked about a lot of information then they had to follow and i think what happened was there was no sat dollar figure for anyone just so that the investigation has not been completed the very mediation had not been chosen and i think the term claim of claim was a term of art that everyone was using different ways to clear up that ambiguity it's the insurers obligation that should not be on the insured it's clear of whether a claim is going to be made and there was no definitive statement by the insured and receiver had said to the insurance companies were about to enter into this agreement the question is would they have objected to that and that's a question of prejudice and whether they could show actual substantial prejudice and that's going to be the differently it would have been nice but the failure to do the floor perfectly is not something that washington courts usually impose on the insured in other words it's always a question of was there prejudice to the insurer from what happened here that was liabilities it was an occurrence there was  we receive or have been negotiations with the g a o we there have been no question that this property is going to have to be clean that about that was that that was part of the question was is the receiver and the group of partners able to do the clean policy and actually i'd like to start a little before that like to start with a couple rules of policy interpretation that are that are slightly unique to washington washington is a state of course this is a diversity case involving washington state that places great weight on the actual language of policy we have rejected in washington the reasonable expectations doctrine that allows the court to depart from the language of the policy that's inconsistent with the reasonable expectations  true we've also rejected in washington to a very large extent the argument that public policy ought to be allowed to change the policy terms we only allow that if there's a specific state statute the only time that's ever been  situation of automobile uninsured motorist covered so washington doesn't force the plain language of the policy and they do so pretty regular silly we have cases in which we have one case in which the difference between the and a and determine the coverage out washington worries are you suggesting that perhaps we should have certified this question to the washington supreme court i wondered about that your honor whether that my question might be asked and i think the washington was clear enough here that there i don't think it's a unique question and i think if there were a split of authority among the states that might be appropriate this is an issue that doesn't get litigated very often and i assume it's because add i think the court and all the questions i got from the court in the opinion still stuck to the specific policy of language they may have adopted an interpretation of the language that was pretty favorable to the insured they may have picked the dictionary two points the first i think aspect of your question is do the contracts really say that and which is what i was trying to deal with of exactly it's our view that they go they simply say if you the liar clean the property up which you may point and the second point is that i believe that the courts will find both the policy language and the basic nature of this policy which is a liability policy just simply precludes payments to the insure  and one way to look at your honour's question is are the insurers here elevating form over substance why not give the substance is going to be the cleanup of the profit who cares whether or not it's done as one of the terms of a contract of sale of the property or by direct payments to a contractor or to a government agency the latter of which is going to be allowed into the policy the quote the point i make on that is first of all form does matter because of the policy language the policy and language says the insurer will pay on behalf of the insured it also says it will only appear amounts to the insured legally becomes obligated to pay as damages in the boeing case itself defined damages as let me just read this claim which result in causing the policyholder to pay the sums of money because his acts were missions adversely affect the rights of third parties now why is this emphasis on paying sums of money important obviously that's you could see that as somewhat of a detail that why is paying money to look different than receiving less money i think it's important because of the very critical distinction insurance between third i think of there were separate contracts and if the payments were a separate payment then then there'd be a much stronger argument here now that we obviously have lots of other coverage issues in this case but just on this one i think it would different be and so i get back to the question is why does this form matter and the reason the four matters is because when you convert when you think about converting a policy from a policy that pays the insurance liability to a third party to paying the insured themselves it's a whole different ball of wax then all of a sudden no longer have the situation where the insured of the insurer have the same interest to minimize their liability a liability policy as protecting the insured against judgments  or amounts the insured has to pay to third parties both the insured and the insured have a strong desire in keeping that those amounts low and properly defending themselves when you turn that into a policy that says we are going to pay the insured money then you have a whole different situation then all of a sudden the insurance incentive is no longer to keep the amount of the judgment low it's to make it as high as possible because the money is coming to the insured and this is recognized it's recognized as a basic  but that's a much more difficult task and it was a task that we were facing there were some there was a five month period in this case between the time that this issue was briefed and the oral argument we were doing discovery on exactly that issue and it magic to be having arguments with competing property appraisers about how much was the property really worth and there's a real question about can this property even be valid it was the only undeveloped forty five acre parcel of  well did they really spend more to clean up this property versus what they would have had to do anyway to fill the lowers because what they ended up doing is they took this giant pile of garbage they mixed it with concrete they dug a hole and they put it in the hole and then they built  difficult claim of having to determine what is the value if there is any of this liability component if you will of this payment to the sure you don't have that problem of course in a determining what's really a cleanup cost and what isn't we also have a problem that all this is being done by a third party it's no longer the insured really the measure of damages the insured is claiming as it quote unquote damage is at the point of sale they're saying well we got three million dollars for this property we think based on a appraisal which by the way was four years old at the time of the sale that we should have gotten seven  that they thought they were going to be indemnified and what if this buyers for some reason don't have the money to indemnify them and all of a sudden they gave of reasonable belief that they're going to be personally liable i think they could make a  and it's very important to point out that every time that they've made a demand against us they've been very clear to say now this is not a substitute for the real insurance claim we may make someday at some point in the future we want to make clear that we're still we're still retaining the option to d we've now determined that we made only three million dollars instead of seven million dollars please send us a check for five point three million dollars so in that sense it's really was a claim it was a claim for diminution in value from the property which we believe this cover what i'm saying is if someday they make a claim that does have the potential to be covered like for example despite everything that's gone on the department of ecology is still going after us for this pollution  believe that we should not have to pay that claim because of the many insurance misconduct in giving us late notice and the court then i think appropriately applies a pretty strict standard and says in order for you to avoid all coverage under the policy a they also had an appraiser and there's a current case that says if the deal we has written an adversarial like demand then there's a duty to defend i think there might be an issue about whether at that point that was adversarial like demand because as i understand it this is not an issue that's before the court so i am a little foggy but as i understand it this site appeared on a list of properties but the insured had never actually gotten a letter saying we the state demand that you do cases that require that that have a looser standard for when the defense is asked still say if the request is later withdrawn you can't then years later say the insurer acted improperly because they weren't paying