claims under two separate policies i would like to address the citizens the citizens the citizens umbrella policy first is it is well settled in the court held in the opponent case that the disclaimer statute should not be construed so as to create insurance coverage that was never intended in the first instance waiver statutory waiver should not be used where the claim fundamentally falls outside of scope of the policy with regard to the citizens to the citizens of bell a policy it is clear that the vehicle was not within the definition a covered auto you need not go any further any of further than that it is also well settled that in construing insurance policies you must look at the whole policy like  any contract in order to construe what the intent of the parties was and here there is a clear definition covered auto and that is defined as only those autos to which underlying insurance applies and that's at page two sixteen and here the insured had an auto policy it was with state farm and they chose not to schedule the state farm policy on the citizens on bravo policy therefore the vehicle was never a covered auto under the umbrella policy so under this opponent holding on its  y citizens was not obligated to issue a disclaimer because coverage never existed in the first instance when you are quoting from  definition of the term covered auto in the in the citizens on bella policy which it which is it page two of sixteen that's the definition of covered old exactly what helps you apparently is the phrase bodily injury arising out of the ownership of any auto which is not a covered auto that is from the that is from the policy from the policy exclusion acts exactly yes so if if the not covered auto is in the exclusion card doesn't that mean you have to disclaim we would say no because that only amplifies what the overall intent of this policy is if your insurer you're both not covered and excluded yes yes and that is possible that is possible and we see why would we want to read a policy to assume use you wrote it that way well you know policies are often redundant and there and it's not the first time that a claim falls outside of the scope of the policies insuring of the policies insuring agreement and is also excluded when you have intentional acts intentional acts fall outside of the policies ensuring agreement be aware where's the language in the umbrella policy we look to to satisfy us that this photo is not covered well it says that it says that we will pay in excess of the retained limit for bodily injury to which this insurance applies automobile policies only afford coverage which is at page two hundred three of the appendix and if you look at the insuring agreement it says we will pay on behalf of the insurers are you really one subsection lower case a one you know we will pay on behalf of the insured the ultimate net loss in excess of the retained limit because of bodily injury or property damage to which this insurance applies it's inviting you to look at the policy as a whole  we will pay on behalf of the insured the ultimate net loss in excess of the retained limit because of bodily injury or property damage to which this insurance applies  it's inviting you to look at the policy how would an insured look at the definition of a covered auto and see that the vehicle i am i am driving is not a covered auto and expect to have  coverage that is fundamentally illogical automobile policies express a covered auto or a not uncovered auto you read as you read is something that uses the phrase to which this insurance applause yes where do we find the language that tells us to what does this insurance apply well we submit that it's the policy as a whole including the definition of who isn't insured and that's another provision that we cite because of who is in insured not we're not talking about the carney more well now we can we can stick there are two basic grounds that we point to that shows the intent that the vehicle is not a well i think the very definition itself tells you that this is not a covered auto so i don't think you need to go further than that however in the section who is in insured it also says that it the policy also limits insured status only to those who are driving covered autos so again who is an insured also supports the idea that that there was no coverage fundamentally here i mean this is an example of of just what the the so pony case tells you you should not do this insured chose not to schedule his state farm auto policy on this umbrella policy and by doing that he didn't want to pay the extra premium and by doing that it was not a covered auto so it's fundamentally outside the scope and  t tells us that you know insurance law thirty four twenty should not be applied so as to create absurd you know absurd in just results and when you say you invite us to look at the fruits to which underlying and surance applies there was the claim at least that the that an underlying policy was the business owner's policy well that while it's also our position that there is no coverage under that policy as well how however a business owner's policy doesn't apply to a specific vehicle it does apply to  people and what they do doesn't like an auto apply if you're wrong if i mean i appreciate you started with the umbrella policy and i take it you'll get to the other policy but if we if we were to agree with the district court that district court agreed stating at least twice that this is not a covered auto but by stating in the umbrella that a covered auto is an auto to which underlying insurance applies that means when the policy is in fact issued there is an underlying policy auto policy listed on the schedule of underlying and it doesn't say to which underlying auto pilot insurance applies it does not say that correct here which have scores of pages of detailed fine print and you're inviting has done now say we're supposed to understand how they generally work well i thought we were we were supposed to look at the precise language that your company carefully grant through your honor however here when the policy says it is a vehicle to which underlying insurance applies and that's a vehicle covered under a scheduled underlying policy doesn't say that just says to which underlying insurance applause well i would submit your honor that that does not that that that that does not mean that if that event if a later but that if at a later time after the policy is issued a court finds that there was a stop all on and that therefore coverages later created through through and stop all of that is not what is done no no i'm not suggesting it was later created the the argument is that from day one the business owner's policy provided underline covered well very your honor it did not i would submit because there was a clear auto exclusion in the business owner's policy and there was a hired and non owned auto indorsement which  which states that that policy only only affords coverage for hired and non own daughter goes and there's a clear auto exclusion well if you're going to then rely on the exclusion you need to timely disclaimer don't  we submit that the hired anon own goto exclusion takes own daughter goes out of the ensuring agreement of that policy and as we argued in our brief he hired a non owned the hired and non own auto indorsement refers to the actual ensuring agreement and said that this policy affords coverage for hired and non own daughter thereby through lack of inclusion not covering daughter so therefore and it was not excluded it was non included and the disclaimer was not in fact required however we also argue that that the insured never asked for the coverage under the business owner's policy or or at least citizens reasonably believe that they were not seeking a member reasonably believe that they were not seeking primary business owners and that art and some coverage so we did disclaim coverage under the business owners policy as soon as a clear claim in their in their up pleading was made the district court thought you got notice in the first the telephone conversation yes yes you did why is she wrong about that because the timeliness of a carrier's disclaimer has to be viewed under all of the facts and circumstances and the courts have held that it is rarely decided as a matter of law it's usually an issue of fact and here the insured the following day after that call that was made to citizens call center and the following day and assign claims adjuster called the insured in order to discuss as the call center said they will call you and discuss the specifics at that time the insured admittedly in his affidavit he says he told the adjuster that we aren't that we are putting you on notice because the auto carrier state farm told us that we should make an umbrella claim go wasn't it reasonable for citizens at least that they had a good faith belief that that you know despite what was said in the first call they are looking for the umbrella coverage and also it's so fundamentally not covered under the business owner's policy and that's what this court held in its decision in the bray bender case where the carrier did not disclaim under a homeowners policy there were there were three policies there when he gave you the policy number he gave you the number right in the phone call  i don't know i but he may have had that policy number but you are there's no question about that is there it is all one policy yes exactly it's week one number apply to t policies view is is that usual in your business well policies are now being packaged together so that under one number or under one document under one number it's issued together however does isn't that the problem here here's a guy calls you up and says we're making a claim under this number and the number covers two policies and then you come in to us and say well they didn't cover the second the notice didn't cover the second policy well we are if you had two numbers you're calling would be a lot better if you just said we're claiming under the number of the umbrella policy but  number covers however they are two separate policies and and as the court below found they are clearly separate policy if they have separate definitions turn understand they are separate but when the insured calls and the a calls and says we're claiming under this number doesn't that give you notice that we're claiming under both policies i believe the term he used was a general that's another argument he made the first argument is he used the number well i don't recall to be honest if he used the number or if the claims or if the call center person noted what the policy number was but it was a very detailed call i will give you that however do we just ignore what was said the following day when the may be may be that's one of the issues in the case if they didn't if the use of the number and the reference to general liability was notice it may be that what was said there after can't unring the bell i would submit that you need to look at all of the facts and certain really citizens have a good faith belief you may look at all the circumstances to see whether what was said was notice many courts have said that but if the things said were a notice doesn't matter what happened thereafter i would say yes because why once a company gets what is notice what difference what the conversation was later because it's a more specific in depth discussion and because it was so fundamentally not covered under the  under the g l policy and that's what the break bender court said here you have the insured saying state farm told us to call you to put us to stay from told us to call because they said to put the to begin at the end bender doesn't have any application here in that case there was a separate homeowners in a separate policy and a call is made about an auto accident and this court felt that it i'm putting you on notice his or general liability carrier and at the end of the conversation he use that phrase right general liability he didn't say umbrella he didn't say primary business owners this is one citizens is briefed which specifically and repeatedly required over and over again that there be underlying insurance and that there would be only payment made in excess of the underlying insurance this policy never requires any underlying insurance and when mr cameron is reading the insuring agreement of the umbrella policy he leaves off after the first sentence he reads he leaves off and doesn't read where it says  when i'm sorry we will have the right in the duty to defend the insured against any suit seeking coverage for damages for such  the underlying insurance does not provide coverage that is what makes this a true one brother policy if three well and have the actual coverage form i'm sorry it's the insurer remit that you were discussing you say the the under the hood the business one is scheduled there is a schedule of underlying insurance in citizens policy and its own business owners coverage is listed in their schedule does not provide coverage but nowhere is there any requirement for underlying insurance however i don't mind taking that wager with you because business owners policy is listed there in the in the schedule of underlying insurance you do  we're going to confirm coverage with the underlying policy and determine if any exposure for this last under umbrella that's what she says right now you see you've really gotten right to the  by that time she had already analyzed coverage under the business owners policy and decided mistakenly think she was saying we're going to look to see if the applies in addition to the business owners know your honor  before that took place that entry in her notes that you're talking about she made a list of potential additional coverages in that list she made is the primary business owners policy its own primary policy that's the traditional understanding of an insurance policy don't look at the whole thing and see what it is is a whole given the push of the policy it's the insurance remain less the exclusions i get do you cover own alternative grounds for disclaiming that there's the exclusion we're talking about the primary policy right now i mean i think that's what you tell us talk about either when you  why are you talking about well i was addressing your comments judge i'll talk about them all but the umbrella policy definitely provides coverage for an automobile accident anywhere any x in for which the insurer may be liable unless there is an exclusion which there is it says yes it does tell me where it says it's in insuring agreement it says we will pay where are you reading from now the started with with one essay which said to which this insurance applies right out of the injury and property damage did not direct us to a clause that tells us to which it applies judge this is how insurance policies are built coverage agreement you pick up my policy and i look to see what i'm over it i don't see it but i see what i'm not covered and so that tells me what i'm covered from what's not in the exclusions is that it pretty much pretty much judge that if you don't start with a policy that say we convert if your house burns down we cover you and then there's an exclusion of course if you started the fire by arson we don't cover you it's but it starts with a covered clause doesn't it the coverage clause is always broad and then that's all i'm asking you where is that broad coverage clause well in the umbrella policy it starts out i know we were talking about the if you shift it all right you can if you want to use the umbrella use that were the same basically the same which is the broad coverage of the broader policy just so i'm the poor little customer and i have an insurance agent and it says directs my attention to which this applies and i say all right what does what does what several decades george and then just how is it maybe you could help us by taking all of these questions under advisement and since we're going to have some material sent to us by thursday morning to consider been the subject of a favorable opinion of the new york court well i can't quote the delphic oracle judge i've got to quote somebody to notice probably you agree that it is the law that whether there the primary policy and she's deciding because it hired now not an endorsement it doesn't apply your notice argument stands on that phone call of course right and you don't think there's any at the coverage under both the umbrella in the primary policy she decided incorrectly it because they hired know not endorsement which its coverage didn't cover this auto she decided then there's no coverage  decided not to have an underlying auto policy and they wanted to avoid the cost it's not in the record and it's not true their broker was put on notice of an error in that respect it was not it's not relevant to this appeal and it shouldn't be considered isn't it we know on this record that the dollars involved for the homeowner the business owner's policy  that the damages in the underlying case exceed that the damages are catastrophic mr jason turner will never anybody's brief tell us what the dollars are here no they don't i would have thought in a case where everyone's fighting over an  policy people would tell us the numbers that show us that the umbrella policy was triggered well i believe in my brief i did say there are no numbers judge but i did say the case new york court of appeal not i'm not doubting you that it may be covered it just odd to me that in an umbrella case we're not given the numbers that show it's applicable but there aren't any numbers he's disabled for life he's in kissimmee vegetative state he's got a on point with regard to the citizens of bell a policy it was a virtually identical policy although the verbiage is different because it's a personal lumber l a both of those policies have the same maintenance of underlying insurance provisions i don't know why mr baer keeps saying that the citizens are did not require underlying insurance it has a provision that says that the underlying insurance shall be maintained so just like the has bonnie case in which the second found that because where the auto was not covered under a scheduled underlying policy it's fundamentally not covered and that policy had an exclusion just like ours and the second department held that that the carrier did not have to issue a timely disclaimer citing the exclusion because they held it was fundamentally not covered under the umbrella and under the business owners policy we would ask that the court look very up close look at the hired and non known auto indorsement which we submit takes owned autos out of the insuring agreement making a disclaimer unnecessary because the policy fundamentally doesn't cover own dau it's one of the things when we get duty defend cases and the issue is was the injury within the scope of coverage there's usually a doctrine that says in duty to defend cases if the injury might have been within the coverage there is a duty that you're familiar with that line of cases is there a similar line with respect to notice that triggers a duty to defend such that if the facts are such that it might be adequate notice there's a duty to defend or is that only a coverage issue i'm not familiar with the notice rule i write and so notice earlier and so we submit that and there is case law that says the timeliness of a disclaimer must be viewed under all the facts and circumstances and here the insured repeatedly told us and indicat to us they were only looking for umbrella coverage including the words of mister pascual leddy also they sent a pushback letter after the disclaimer in which they only cited the umbrella policy no one ever  except for that first call citizens reasonably fought this is an umbrella claim all right thank you very much thank you