please the court the district court reversed simply erred by resolving to material fact disputes on summary judgment first when the just sorrow parties should have realized the insurance policy as written didn't cover to soar refining and second whether the contracting parties intended to store a refining to benefit from the policy just as a matter of common sense it just seems difficult for me to understand how a sophisticated party would not have been able to look on the face of this policy and to see which parties are listed yes your honor and we certainly agree that this is an unusual situation in the sense that multiple sophisticated parties fail to appreciate the error in the policy as written not only chartists and that to sorel parties but apparently valero ultram are the seller of the fin soras agent and numerous employees at each of those companies but three points first the unusual posture of the case itself suggests that it's difficult to resolve these issues on summary judgment reasonable individuals could react to the mutual ignorance between both sides concluding that both behaved reasonably neither behaved reasonably one or the other the room for such different reactions to the facts here is itself the fact question that we're entitled to argue to a jury second both sides had serious financial incentives to discover the air and neither did and that suggest that the error simply was not obvious record testimony regarding to sor corporate policy a prick your ing insurance in the parent company's name and insuring coverage for subsidiaries like to sort of refining later elsewhere in the policy i think goes a long way toward toward honoring your your toward answering your hono question in other words the presence of to sort of petroleum corporation as the named insured in the policy would not have alerted anyone that anyone was anything was amiss because that was the company's policy of securing and other companies as well marja the same thing and one of the difficulty for me of deciding when the reformation cause of action a cruise is it is it's basically assuming the existence of a legal mistake and this might really be a follow up to a judg just asked but explain to me how there was a mutual mistake i mean there's there's clearly probably a mistake here but how was there a mutual mistake when you know on may sixteenth two thousand and two there's this letter saying an official request to assign honor and i think as as an initial matter i want to emphasize as we do in our briefing that our contention is that reasonable minds could differ on that point in other words this is a disputed fact issue that a jury testimony of the insurer of chartists his own underwriter and this occurs in the record at twenty eight fifty seven and this is where mr hubbard testifies quote i intended to assign the policy to the entity that was going to be responsible for the liabilities associated with the environmental assets so the mutual intention i think the reformation claim starts where the intent is the same it's the drafting that's the problem right so the intent on all sides and i think it's particularly clear in this testimony from the record was to assign the policy to the entity that bore the liar that bore the responsibility for the environmental admitted that they intended to and in fact did put the policy in the named insured being the parent that's how they did it so tell me exactly what would be reformed if we were to agree with you this is go back to you were to win everything wh a win look like in terms you reforming the policy specifically what words are going to be changed certainly your honor and there are there are several ways that could be accomplished you know i'm anderson how are you referring this is a homerun you won you rewrite it tell me how that is what we asked for in the district court was for to sorow right refining to be added to the policy as a named insured ok so you are not just changing the name you are adding an inch or so to certain petroleum the parent would still have the insurance but now to source refining would also have insurance per size lee as in the ultram are the previous owner of that policy was issued to the parent corporation and was supposed to be also endorsed or at or in the definition of name insured the operating subsidiary was supposed to be included in the policy as originally issued and charges has admitted that was the intent but it made a mistake there in that scenario too so essentially what we're asking for is for the policy to be reformed so that the policy as written extends coverage to soar refining which the underwriter admits that was the intent of the part and i ask you this the mistake then in your view is not in the naming of to serve petroleum but in the failure to include to serve refining as an are there disputed fact issues about when now that is your question my question i think is very clear is the absence of disserve refining as an additional insured or as a nother named insured inherently undiscoverable i think from this standpoint i would say the i understand your honour's question but i respectfully have to have to i guess preface my answer to it by saying that  the cause of action for reformation i'm in a sense presumes i mean texas law presumes that parties read read a document and thereby discover the mistake that presumption can be budget under under texas limitations law by evidence showing that it was reasonable for a party in the position of the parties here not to have done so not to have if the policy is read i think that would be true your honor in in every reformation case i think you're absolutely right on that that that's the issue in every reformation case the issue is a more difficult case for you than the deed in cosgrove because deeds get recorded in there put it with register with the county here it's your client or its representatives telling the insurer who to add to the policies i mean it's not a good deed situation where someone might context where the world is presumed to know the contents of a deed to create some sort of exception that the parties themselves were somehow not on notice so for from my perspective the fact that that  grove is a deed situation really shows how in opposite it is to the facts here on with that is that's true if you're talking about people who wouldn't otherwise have access to the deed so if judge smith and i have a private contract you have no way of knowing about it if we filed it in the deed records in the world would know but here we don't have any question that the sorow have the policy so this isn't some situation where they were told yeah the policy is fine but never got a copy of it they had a copy of it they put in their file i understand the argument look at all that i get that but i don't understand why the world knowing is some kind of distinction when there is no question to sorrow hand the policy really isn't a matter of can i go find out this information from public records which is the deed situation i have it in my records sitting in my office i didn't look at that you're right and i think that's why under texas law there are actually sort of two prongs for rebutting the presumption that you've you've read and are aware of the contents of a document i think the first is what your honor referenced and in there was i didn't read it i just just put it away the second is i think the context here which is relying relying on the insurer to carry out the insurer's function of accurately reducing to writing what the intent of the contracting parties actually was your honor thought if that if that answers the intent that you articulated was the intent to put it in the name of the person running the refinery however you now tell me actually the intent is to have two insured not just want and that is a different intent and so chart had charges been told there's going to insurance but they receive only one name i can see the argument won't where's the second name but they're told we're going to send you the name they get the name they write the name down so i don't understand what they didn't effectuate they didn't go and explore the to soros corporate structure and all of this kind of stuff and how is that on them when to soras the people that set up this convoluted corporate structure two responses to that argument i think first i have to resist slightly the premise there  was it was highly debatable and there are fact issues with respect to how exactly the mistake got made there's no evidence in the record that to to the sorow parties instructed chartists or as agencies to assign the policy to just sort of petroleum corporation it's not clear exactly how that mistake was made up it was there burger the broker didn't the broker used the words this is your official record to assign to to disarm so i think it's ambiguous there i think that they intended the just sort of parties to have the same coverage that the previous owner that ultram are had and ultram are have this is what you said earlier which is making sure that the people running the show have coverage yeah you're saying wow it's making sure everybody in the to sorrow family has coverage and that's a separate issue i mean it doesn't expand the coverage i mean that's one of the things we're not talking about premiums are based upon who's being covered what's being covered whatever when you suddenly are going to cover two different entities the parent may be for its knowledge and whatever whatever and then the subsidiary for its conduct or for of being the owner or from whenever that's a different analysis than just covering one or the other but the parties understood that the coverage was to the actual operating subsidiary so that that is precisely what the to sorel parties thought they were going to exactly what ultimate had which was naming naming the parent as the named insured and also in covering so so the premium that was paid upfront just shy of a million dollars was for precisely that structure parent an operating subsidiary that's exactly what we were intending to get coverage for your your demand letters only listed the parents in their right the demand letters did say i think our formal coverage demand which was on october eighth two thousand and seven did make clear that it was just sorow refining that had purchased the refinery and that was the owner and operator of of the refinery so no your honor our coverage later  i think there are i will i do think there are material fact issues on that point in terms of the actual letters tended to use to sorrow as a shorthand ask you getting back to the inherently undiscovered because i have been asked this and that is we have these it's got to be inherently undiscoverable and objectively verifiable and that is what cost growth is ripping off of in my view is not some brand new thing that happened in two thousand and fifteen it's the extension of about twenty five cases that say that and so can we even really rely on some case from the sixty's when we're talking about a sea change the current in one thousand nine hundred six that you often discuss but that nonetheless occurred i do think so and i think that is because and i see my time is running from my answer and your question i do i do think that the difference between the discovery role jurisprudence and the mutual mistake reformation jurisprudence is important in this regard and again i think notions such as inherently undiscoverable when you're talking about a a written document i think the the ultimate end of your question if that were right would essentially do away with the cause of action for reformation all together and i don't think that can be right so i could have four years you know four years well but i think three years good enough for a lot of things and so i don't want them to that i think that ms is the mutual mistake doctrine i think that would that would be the casualty of that approach and i don't think the texas courts intended in their jurisprudence on the under indorsement twelve which added to solo patrolling corp and that fundamentally presents the question this raises regarding reformation which is whether under conceded that the discover rule nine apply which she has to because again i mean you also basically acted like the cost group was some brand new thing whereas all time was twenty years before that the fact is that's been the law for twenty years has to be inherently undiscoverable for the discovery rule to apply absent a statutory discovery rule which would be a different category that we don't have here so to me that alters this whole old line of cases a jollier relying on or we're discussing she says it doesn't because reformation is just different we don't really follow the construct of discovery really follow something else some amorphous something else so i'm not sure i understand that but go ahead and address that because i mean she's basically consider this girl don't reply with what she's saying is when you have a mutual well the problem with that is then we're not going to really have reformation of your mutual mistake well of course you will you'll have a for years that you delimitation and more if you carefully examine cause where you are correct what it did was clarify as i believe the texas supreme court stated what it had suggested in an entire line of previous cases and announce it as a bright line which was simply this in a plain omission case in an unambiguous document the discovery rule sh not be applied that's the ruling cause growth it's controlling here it didn't merely clarify the case law that had been accumulating in texas for more than twenty years and in interesting in the reply brief the only distinction that to sort of drew regarding cause growth was to suggest that cause growth in every single case it cited and they say this were limited to deeds as a matter of test property that that second question that lot of questions necessarily was limited in scope to d but the discussion of the discovery rule drew from discovery world jurisprudence which is not particular to any cause of action quite to the contrary all the cases say the issue is one of law to determine whether in an exceptional case the discovery rules should be applied to tolliver riot is different when the what's the what's the rule for a cruel omission in an unambiguous document then the discovery rule does not apply and to discover ending statute of limitations will begin to accrue at the time the party receives the doc make in response to judge changes enquiry is if you look at the cases that cause growth sites and we didn't get to some replies and we didn't get the opportunity to draw attention to this but there are six cases which it cites in support of it discussion of the discovery row two of those are medical malpractise cases two of those involved when gas royalties one of them is a misappropriation a trade secrets case and one of them involves a climbing involving an additional named insured under an insurance policy the image and the image decision is particularly instructive that case by the way was a continuation of the dispute that this court decided in which judge smith wrote the opinion in take versus said and james where the court road in opinion rejecting a reformation claim to add an additional named you're sure despite the existence of a certificate of insurance that was  a soliciting agent for the carrier that's a far more compelling set of circumstances than we have here so signing in via net in particular via met was the follow up it was a breach of contract case not a reformation the first we have restricted the discovery ruled exceptional cases to and for defeating the purposes behind limitations that second they found specifically that the failure to add a third party as an additional insured is objective leave verifiable and not inherently undiscoverable and of course it's just common sense you read the name on the policy and it became covered a party who isn't listed it it was obvious here if you're a if your legal position is correct here that that yields a huge windfall doesn't no more so than in any other statute of limitations case that equities in each individual case involving the application of the statute of limitations are always ours but from a public policy perspective the texas supreme court has made clear that the equities in favor of finale and in favor of our harsher let's grab and they say the equities for example in the harbor insurance case which this court also cited and which is also relevant here were actually given far more compelling there was a need knowledge of the in part although it was also dealing with limitations but in the preceding cases we're dealing with was whether you could have a claim for reformation and all because the presumption is i get the policy i should read it and having read it i ra accrue when can i sue is a different question at the discovery rule either answers or doesn't i was either applies or doesn't so if i get the policy and i put it in my file and i don't read it i haven't ratified it if i'm to s and three years later i can go opes oh my gosh refining siding here in sue and i'm not barred by my failure to read it earlier however if i wait you know longer than four years i'm barred by limitations not barred by food read and ratification barred by limitations is that a harmonizing approach or not it is a harmonizing approach and with one slight modification i would agree with you this court is actually previously recognized the limited scope of the boil case and the table a case on which the sole row has relied in materials evaluation this court said these cases are distinguishable from the present matter because they involve the insured not examining the policy on the basis of the policies were intended to protect the insured from the covered with us based on prior  can change my mind later i knowingly did that i'm barred whether i sue within four years or not that to me is and the merits of a ratification argument this is a separate question this is on day on three years and three hundred sixty four days you had a cause of action for years and one day you did that's limitations and i don't see anything that you just said is changing that no from a functional perspective it does not the tweet that i was suggesting earlier is actually on a legal basis and it's going back again to the third point which the viet court made and it's the proposition for which the and it was cited by the cause of court which was that the court failed in determining the discoverability of the additional years is a ratification question as with those old cases or talking about by getting the policy am i deemed to have ratified it if i didn't immediately call up and go for example when you negotiate a settlement with those in council and they send you something where they bar reformation claim at all that to me is a separate question from a cruel discovery rule four years later ten years later whatever and that's what i'm drawing the distinction of these old cases are largely dealing although they overlap some with limitations are largely dealing and the handful of cases we've never address them all involve circumstances in which as you suggest just change the insured met the burden of proving that it never read the policy that it did as you did and stop the policy in the drawer that isn't the case here it's undisputed that the sorra we see these policies it's undisputed that they read them it's undisputed that they were part of a billion dollar transaction one billion dollars that was regulated by the federal trade commission it's undisputed that the policy was an exhibit to the purchase and sale agreement for this refinery in it is unimaginable that setting aside more at full brightness towards committ mr hafner who is here today testified that they had an understanding of what was important to them at the time they did the acquisition so why don't you address we really talked about the benefit to our party beneficiary because if that argument is good then all this limitations to sort of try to cloud that issue a little bit by citing to you in the record so california law applies you lose no not at all i'll address that in a moment but if texas law does apply to sort of concedes that it leaves and the question is whether or they argue that you shouldn't apply common need with provides for an exception for section one eighty eight which provides for a general analysis because if you did so the exceptions would consume the rule that's clearly not true as the restatement itself notes in the overwhelming majority of cases the insured risk going to be loping in the same jurisdiction which is the policy here that was not the case and the courts tha applied for example in the a boardman case have found that look to section one i'm sorry on had you look to section one eighty eight and do an analysis of which the identity of the parties to a contract negotiated in texas involving texas domiciled corporations and texas law controls the contract formation she's here if texas law governs it's an easy add to very or detract from the terms of the contract but to understand that it's very california rule you can look to the strains if you have against to understand the context in which a contract was made but you can't add two and in fact you're saying what ms ho just told us about adding another ensure it is adding to it even if we're california dream that's correct in the ninth circuit specifically addressed that in the bonaparte decision which we cited to you where they found that even under california law an insurance contract is personal and provides protection only for the named insured not for a general class of actual onerous as misho was suggested and the american home case below on which the trial court relied is a very similar situation and to soras attempted to distinguish that case by claiming that the into the which wish to be added as an addition to that was merely a passive poor it wasn't it was the actual lesson of the pro identity of the coverage is personal to the named insured under california and california law could not you can't rely on extremes of gavin's to add a new party there are no cases in which that has each about their argument that you don't read an insurance policy in a way that would effectively preclude any coverage and that the parent corporation that is listed isn't really going to have any environmental liabilities yet they're paying all this money and well the trial court specifically addressed that and at the hearing below the sorow conceded that it had coverage under this policy and if the trial court noted that sort of parties may have not received the benefit which they been sued joined in a suit by a third party their coverage is under c d and e i believe we would have been obligated to defend those claims coverages also provided under this policy to valero as an additional named insure evidence is characterized by and in the light most favorable to the sorra partings demonstrates that the summer parties intended that to soar and refining being named a beneficiary of the policy not a third party and that's the essence of the problem they don't really have a  davis thank you that's how you save time for bubble three brief points first in response to one of questions about the third party beneficiary claim that is an alternative basis for reversal and we do believe california law applies substantively for the reasons we've set out in our briefing and that at the least there are material fact issues about the intent of the parties there what do you how do you respond to the argument that you just can't go around adding insurance under some sort of third party many fish you're even in california i think the question under california law and i like your honour's articulation of it is as california dreaming i mean california law is very different from texas law on this point in that it really is whatever even something that looks clear  is not in the primary thing is to consider what the intent of the parties was here and i think that the testimony that we talked a little earlier to layer intended beneficiaries on to an insurance policy that the whole point is like  sure i agree i think what we're trying to get at here and i think at this point on part of summary judgment we have two theories i think which one ultimately would be more viable is it is again a matter for a jury to decide that's our primary contention today but i do think of those two claims really are getting out what was the intent of the parties what was the intent of the parties and all of the for the reformation claim that that claim is that the the writing did not effective effectuate those and those intentions i think the heart of the third party beneficiary claim is this is similar in that what you're wanting is you're getting at the intent of the parties and the california law is simply much more liberal than texas l respects number one in not just allowing but requiring courts to look at in extrinsic evidence which with which respect fully i don't believe the district court did here and second of all that the third party does not to be as it does in texas law explicitly spelled out so again our primary contention is there are at the least material fact issues on the third party beneficiary claim that precludes summary judgment at  this stage and also just to be clear on the reformation claim my my argument is not that just the discovery rule doesn't apply here it's that in the body of mutual mistake wall there are two ways that one can show that it was reasonable for the party not to have discovered the mistake again one is exactly what your honor said to change which was putting away the policy without without looking at it the second way under texas law that is still good law has never been overruled by any other texas case so far as we are aware is reliance on and the on the insurer to that we're we're relying on the insurer to effectuate our our intentions and i think we would we would be my evidence in the record that shows me that not just your representation time i understand your argument i'm trying looking for a record of evidence to prove this point that you say is so critical i understand your honor i would say the evidence of that would be first of all the testimony of charges underwriter with what the intent of chartist was in terms of what what they were trying to do with assigning the policy to cover the entity that was responsible for the liabilities and and i think this is critical to give us what ultram are had and there's  reliance not chartists want trying to do the right thing messing it up but to superimpose reliance on charges to the to the extent that they aren't going to do their own due diligence they're going to rely on charges where is that evidence i think of that that your honor is in the e mails between and we've cited several of these in our in our brief the e mails between the parties of watched what chartist was wanting excuse me i misspoke what to sorrow was wanting in other words the same coverage that altered from our have i think it's inherent in that way that we were relying on trust hardest was the one who was writing the policy chartist was the one who was making the assignment i think that's that's undisputed and so i think that the e mails the discussions all of that i think is evidence that of course we were relying on chartist in other words we weren't sending them say you know drafts of things to include we weren't sending them dress we were relying on chartists as that that e mail conversation shows and i see them out of time and finish we in other words i think the point of the exception is that we is that in this situation and i don't disagree that this is a very unique situation we had no choice but to rely on chartists to assign to us what ultram are had which was what we wanted and what charles wanted and our our primary contention is that material fact issues precluded summary judgment this point in terms of whether the written policy actually  affected those intentions or not or thank you michelle your question under submission in the court will take a recess