one you just heard because it has to do with a workman's compensation insurance policy just to get to the main issue right upfront question i think that the court has to determine and the district  determine is the policy language in this case on the ambiguous or is there any ambiguity and the answer that question as you can expect coming from my side but in fact if you look at the policy itself is not only is the linguist language of this policy not on the ambiguous it's incomplete it's not even sufficient to figure out how one is to determine what the premium is going to be on to the policy the policy itself has a game but can the policy not reference another document your honor cert ok certainly a policy might not reference all documents the problem here is the policy does reference a number of documents ok so let me ask you specifically about the manuals you all talk about the manuals where are they in the record your honor i'm not sure whether those manuals which are i think they're huge i have had the unfortunate experience of going through them but they have nothing to do with the issues in this case so for example it says those in the end will be determined by using liberty mutual manuals of rules rates rating plans and classifications so in the ad if you all have the manuals in the other side as the main those are as a manuals except us what do we do with the fact that we don't have the manuals to look at to see if they aren't ambiguous or complex or hard to follow or impossible or whatever the right standard might be your honor i think if you had the manuals in front of you and there was a reason why they weren't submitted to the district court because they don't have anything to do with the dispute here those manuals you know rely on the manuals for any ambiguity you're saying the policy itself has ambiguities rector's in fact the manuals don't deal with the principal issue in this case so what the court needs to understand it took me a long time to understand how the worker's compensation premium was determined and calculated in this case and if you look at the part five of the policy which tells you how to do it and which as judge changed just said it says are all your premiums will be determined by our manuals of rules rate rating plans and classifications of those four things rules aren't an issue ok so are there such manuals there are manuals but those manuals don't relate to the real issue in this case that issue in this case if i may be so bold  to say what really happened here is that the rating plan and the way the premium was determined is something called a loss rating plan also are guaranteed cost plan none of those things are defined anywhere in the policy in the manuals or so on and how they get to the to the premium is this follows the company in this case service there gives information to the insure liberty mutual saying here are here is our payroll here is the total amount of payroll which is approx three hundred million dollars and here are the employees that we have and they're in certain classifications that information was given to liberty mutual the information is then fed into a computer the computer spits out this big long thing that says ok we've got so many clerical workers and so many this kind of workers and so on and so forth and by state it then says ok here is the classifications this is the code the classifications the rates and multiplies it out and so on what then happens and then you get something that's called a manual premium it's just it's a number it's not the final premium by any means it's a number and what that number is is if you take those employee classifications and codes and multiply the numbers out you get a number in this case it was about five million dollars those numbers and that printout is then sent to liberty mutual's underwriter which in this case is usa i g united states aviation this is a company that knows the aviation industry and they have an underwriter who testified in this case is name is john matthews and here is what he said about how he figured out what the premium was going to be he didn't just take those numbers and then add twenty five percent and you hear about the twenty five percent has to do with the scheduled debits that you that you've read about he didn't do that what he did was he took the loss history of service there serves as a big company one hundred million dollars in payroll and he took the loss history over five years and he did his own analysis and he determined that over the period that liberty mutual was going to be there that the likely claims that would be made that is the losses expected losses would be a certain amount and he added to that certain amount a number that would constitute the profit that liberty mutual wanted to make on the policy he then came up with a premium number that premium number in this case this is the second of three policies in this case was six point two million dollars he then not the premium number was based on the adjusted employment records how many people were handling baggage were sitting at their desk doesn't that i mean don't i just totally loaded that's what led him to reach that calculate no that's not what the evidence is he took the six point two million dollars which is the premium that he wanted to charge he then looked at that printout the printout that came from liberty mutual and which had come through service or delivering your two and it said five million dollars or five point three million dollars and because he was as he testified because he wanted to charge six point two million dollars in in premium he then added what are called scheduled debits those are totally discretionary you can't find a so there's not an actual schedule that says here's how much you add here's how much you subtract there's a debit or credit and it's somewhat counterintuitive in this case the debit means he wants to add more premium because the none of the district court this was really that the calculation itself was really even the focus of the disagreement i thought it was all in whether these clauses were inconsistent whether there was even you you were arguing as i understood in the district court that there was no right to even a justice was just you know the price paid at the beginning wasn't an estimate it was the final price that is not what we were arguing with all the respect we didn't argue that what we what we argue it is that the pollen you're pleading certainly before before it got to eat up for summary judgment that that seemed to be the position of look we had this first guaranteed rate policy and then we got the second policy and we didn't realize it had changed that they can make this adjustment you're our pleadings when we started the case were different somewhat in italy from what we argued after we found out what all the facts were but to get to it to try and answer your question what the underwriter did was he said ok i want to get to six point two million dollars so i take these manual numbers and i'm going to add what's called a schedule debit of nine hundred ninety three thousand dollars in this case is so you're not disputing i know you have this mutual mistake which is a separate issue but other than that you're not disputing that they could adjust when they realize that there were blatant misrepresentations about what types of jobs these folks had you're not saying that of the right to were just using it in a just properly they didn't adjust properly what they should have adjusted for was the difference in the overall pay payroll which by the way  s relatively interesting they could not take account of the fact that you had mis represent your client and misrepresented how many people were in baggage where there's much greater injuries than sitting at their desk i will take some issue with the word misrepresented which has an intention implied there misstated ok they did that they met they didn't estate yes they did but the underlying code classifications and the allocation of payroll was irrelevant to the way the premium was set this is a policy and the court should understand that this is a form and c c i national council on compensation insurance and there's a foreign policy this foreign policy is used by companies that have hundred thousand dollars in payroll one hundred million dollars in payroll and a billion dollars in payroll ok so it's a big deal if we were to find this policy to be ambiguous because then we're basically negating thousands of policies not just yours and your whole argument other than usual mistake is premised on ambiguity and on there being a problem with the wording what is guaranteed casa mean what is this and that mean now all of a sudden your argument is a math argument well could have been five but it was six and instead was a was two in all of that which is a math argument about yeah you can recalculate but you recalculated wrong and it's really this other number and that's a different i mean you can think what you think of your br but it's a different argument than the one i read will put it that i'm not saying it's nowhere lurking in your briefs i'm saying the main argument i had understood was a mutual mistake and the fact that there were these undefined terms and problems with that you're on now you're telling me it's a math case maybe i have mis stated my position or what i was trying to explain to the court is that the policy is on the is ambiguous in this case because it is incomplete and doesn't explain how you get to the premiums so that the reason we lost we get to the manual issue and i heard you say and maybe i misheard you that the manuals don't matter and frankly i think when you're on appeal if there isn't record support for what you're arguing that goes against the appellant i mean i think of  missing a record in a case that cuts against the appellate because you're the one saying the district were done wrong and if we don't have any record to show did or didn't do wrong if you're where we are man i hear you're on about we're not saying that if you looked at the manual you'd see the ambiguity if you looked at the manual you would see that has nothing to do with the schedule debit or credit and what happened here is that the premium was set based on the loss rating that the underwriter made and the debits ten were added to the manual premium what happened at the end when it was discovered that this was a mistake and both sides thought it was a mistake understood that it was a mistake and both sides thought these numbers were accurate when they were used to set the premium what happened here was all liberty mutual did was mathematically through its computer spit out another bill which kept which used code classifications and rate but didn't take into account the fact that there were scheduled debits that were used to adjust that manual premium the original reason that there were scheduled debits added to the premium was because the manual premium wasn't high enough to get to the liberty mutual loss loss rating that they wanted to charge so what should have happened here at the very least is instead of being scheduled debits there should have been scheduled credits which would reduce the premium and that didn't happen but let me talk about mutual mistake because i don't have that many minutes left to talk the court below said that there is not a mutual stake here and primarily because i think of two reasons one it said that the the estimate was irrelevant because according to the premium the according to the policy the final premiums set after audit so there for the estimate has nothing to do with it so with the policy premium and therefore the mistake was not material to the parties and i beg to differ in that the evidence shows if we can if we could prove it we try to argue with the court below is that the premium that was set was a crucial fact that led to the party and i think this problem is that that that you have a guaranteed cost provision and so that puts any mistake if you will on you or maybe on them because if the mistake goes in your favor you get money back so it's already accounted for in other words i think i'm going to be charged a thousand dollars for my car insurance but they say but we're going to go and check your car later that i know well maybe that's going to change your honor i understand it was a mutual stake in this in this case to the benefit of the insurer but it was material know both anonymous take the point i'm making like i just did this we just got a new homeowners policy and they said well we're this is the premium we're setting based on what you told us about your house but some guy's going to come and walk around your house and it might vary the premium so i understood that instead of it being i don't remember what it was a thousand dollars it might be nine hundred or eleven hundred i knew that was coming down the pike so how can i say that's an even if i relied on the thousand i would've changed coverage if it wasn't the thousand or whatever how can i say that's a mistake when i know it could change i can tell you that that argument which certainly is what liberty mutual is arguing ignores the reality of the situation and the evidence and mr mathews own testimony in which he testified and he was the one who set the premium and there were lots of insurance companies bidding for services work he testified the code classifications in rates were immaterial to setting the premium nobody cared about that what they cared about was a six point two million dollars that was being quoted because there were other companies also based on loss rating and loss history who were quoting seven million or seven point two million a garden meant that's an argument that they breached the contract that the contract was they could alter the premium based on finding out the true facts but they just didn't do that that's a different argument to be fair you do have a lot of ma here what i meant was that the math seemed to be directed to this confusion of the guaranteed cost now you're saying really the cases we understand the policy it's just they didn't follow it is that a better way to characterize what you are hearing what i'm saying is the policy cannot be read on ambiguously because you cannot even read the policy to get to the premium that was charged either initially or in the end in order to do so properly you need industry information as to how these policies are applied in the industry which is contrary to the way it was done here and i'm sorry i've run out of time thank you good morning please the core sean jordan and chris thompson for liberty mutual i think at the outset judge haynes to your point and to some of questions for you judge it's important to clarify just why judge smith correctly found that there is actually no ambiguity in how these premiums are calculated the part five of the policy specifies how premium will be calculated and specifically references what is known as the item for extension of information page in the policy and in when the court looks at that and i urge the court to look at these pages in the record this is a record on appeal pages for forty nine to four sixty six eighteen pages that describe in detail precisely the form of that will be applied by state by classification code ok let me because i'm a little bit confused i thought they were claiming an ambiguity in the policy at least in one guaranteed costs meant some of this other stuff now i'm hearing him say well you all didn't even follow the policy which is to me a slightly different argument it could be that the policy allows you to go back and say we use told us too many clerical and not enough baggage handlers and we can readjust but that that's not what you did and to me that's a different case that's what i'm calling the math case which i don't mean to demean that it's just a different case because it allows you to recalculate the premium but you have to do it properly under the policy i had thought this was the case again putting aside m mistake about we can't tell what the policy requires to which one is it can we not tell or is it a map there and i realize you're having to tell me what your opponent saying but i found the argument today a little bit inconsistent with what i thought the case about and i could have just misunderstood that's why we have oral argument clear this up for me right joe right to change and i will say that with all due respect to my esteemed you know colleagues i think there has been some confusion in their arguments and it may help to have a little bit history that goes to judge cost  our question which is remember that in the beginning of this case when they file their answer and all of their answers to interoperate tories and everything up to when we follow the summary judgment all the discovery for a year in this case their argument was very straightforward it was this was a policy that when there is a composite rate policy which meant basically along the lines of what he has i think suggested today and suggested someone in their briefing that it's just straight up payroll and one flat price that applies across the country you know five dollars sixty eight cents per one hundred dollars of payroll that was their argument and that was their argument all the way up to summary judgment right but the problem for them was all the evidence in the case conclusively disprove that witness after witness said there was no such agreement and it was obvious there was not a composite rate agreement that rather consistent with what i will go through in a minute which is the plain explicit and detailed language in the policy that what was the way that the policy would work is the rates would be based upon worker classification codes and payroll so we get to the summary judgment  judgment on the composite right argument and then they completely shift gears they abandon completely the opposite composite radar even instead come judge chains with an ambiguity argument which i think is as you said what we thought they were saying in the briefing to this court which is not the math is wrong but no this policy is ambiguous and you know their math isn't right because we need this exchange of evidence showed it should have a completely different basis what i will tell the court very straightforwardly is judge spiff got it right the math is not wrong there is a formula the formula is set forth in detail in the policy at pages four forty nine to four sixty six when week and remember this is an estimate of premium and how we estimated the premium is set forth in those pages in detail by worker classification code with the rates there and guess what with the schedule rating also put in there ok but he's saying your guy testified i threw that out the window and just said hey i want to make this much money so let me just get there and see that to me would not be a problem with the policy would be a problem with a breach of the pa failure to follow the policy which is the math error that i'm in or the math problem that i'm hypothesizing but really it's to put it in legal terms a breach of contract not a problem with the contract judge haynes i'm going to call at you know what that is that discussion is just a plain red herring because and here's why it's a red herring let me explain why it's a red herring because that is a complaint about how our underwriter arrived at the schedule rating in other words what did he do to consider what to come to the schedule rating that's part of the formula and as the district court judge recognized how we arrived at the schedule rating doesn't matter what matters is was it disclosed did they know what every schedule rating was and did they agree to it and they did and ever and if you look at those pages the policy at pages four forty nine and four sixty six we disclose every schedule rating so when he's saying this guy i thought of this right didn't think of that will look a lot of calculations going underwriting and he's talking about what went into the schedule rating that's irrelevant for this core what matters for this court is was it unambiguously in the policy under texas law we know that an unambiguous policy just like any other contract will be enforced on the written terms the parties agree to using it's just like for life insurance obviously actuaries decide well this is how you know people are expected to live this long and this is what we need is that the price is after the insurance company to make money you're saying that all goes to the rates what he's pointing to is how they came up with the rates with those rates the rating plan is part of the policy of a formula this is critical just cost of the formula did not change remember this goes to your example judge chains this was an estimate part of the policy this is it page four thirty nine in the record expressly says this is an estimate not the final premium the final premium will be determined when we do an audit and we look at your actual payroll and see what our actual exposure was and so all that matters is now saying you didn't do that you didn't do that to come up with the original premium you didn't do it to come up with the revised premium you just made up a number and therefore that to me is not an ambiguity in the policy it's a breach of contract right and the judge in terms of testimony from your guys saying that i got something off a computer through that in the trash and just went off and decided to make this six point two million and so he's saying it didn't really matter what was in the policy ambiguous ambiguous or otherwise because  did two parts what he's talking about there again he's talking about how they arrived at the schedule rating piece of the formula that's all he's talking about but the schedule rating that we arrived that is disclosed and was followed throughout it was followed at the estimate stage and it was followed in the audit stage let me give you the pages for the audit for those coming up with the rate and then applying the rate to their employment figures exist to their two separate steps and you're saying what he's complaining about is the first step how they came up with the rates but not how the rates were applied to their employment figures right that this report put it aptly he said it doesn't matter they just records it doesn't matter what the motives were in a riving at the scheduled rate part of the formula all that matters is that the entire formula was a disclosed to service error and be followed strictly adhered to and the record demonstrates both of those are true so so the math is applying the raving figures to their new payroll numbers that's it that's the mat that's the only thing that changed everything else about the formula stayed the same it had to stay the same we could not change the formula so in other words with a formula there's in those pages in the policy pages for forty nine for sixty six eighteen pages by state detailing all this including the schedule ratings when you look at the audit pages to eighty four to ninety six of the record you'll see that we followed through on that in other words the only thing that changed to your point is we they gave us the wrong numbers and the importance of them giving us the wrong numbers i think both you and judge has a point out meant that our exposure base was much larger than what we had estimated and that's the whole reason why you have a final sorry so i'm actually by the miracle of technology looking at page four forty nine so i'm seeing that it's got you know these different places california and florida and all of this and then it has class code payroll payroll pro hundred estimated premium right what is it and then this that you think your opponent is challenging which of this thing i'm looking at so i'm going to give you my best understanding because i will admit that i am i am sometimes confused as to what exactly their argument is here's what i think their argument is what i think their argument is where you see judge chains on that page near the bottom of the schedule rating number you see that schedule rating on the left hand side is near the bottom it's by the third line up from the bottom just above santa i mean i see that and you go across you see the point two five right ok that is the disclosed kegel rating and you know we lawyers aren't great at math but if you go back and i urge the court and your and your staff to look at this what you'll see happens is that point two five yes it is increasing the estimate of premium because what it saying is the premium number that was divided the devise before that the modified premium you multiply by point two five that number and what you find is you get an additional five hundred thirty nine thousand to the estimated premium that's the schedule rating that's going to be applied at the backend judge chains so in other words we couldn't change that schedule rating like we couldn't say at the back and you know what that we don't want point two five we like point five zero and so we couldn't when we did the final premium said you know what let's jack a reason the numbers were bigger at the end didn't have to do with us changing anything the formula it's quite simple when you take that point two five and you multiply it by a payroll that is that is what it was wrong because it had lower exposures the reason that it's much higher is ok and so what you're trying to some of your argument is that this scheduled rating number this point two five however derived was disclosed to them at the outset and so if it was derived by somebody flipping  doesn't matter because if i walk into a store and it's five dollars for a cup of coffee i just have to decide if i want that cup of coffee or not and it doesn't matter whether for ninety nine of that is profit and one cent is the coffee bean or vice versa but i'm being told five dollars if i'm suddenly charge six dollars then i've got a different issue but if i'm charged five dollars i know i'm being charged five dollars i don't get to decide what what how do they come up with that is exactly how to really oversimplify know that is a great analogy does change the reason being that that's exactly what's going on here you don't care what the price of coffee beans being imported from colombia was or how much the equipment cost at starbucks that went into the price what you care about is did they tell me this is going to be the price and  was i fairly charged the price now here and that's why what's critical here is this part five where the parties specifically agree this is an estimate of premium we know there's going to be diversions and look they might be diversions and service areas favor in fact change it might go either way what they can't say and what the record conclusively establishes they would be wrong on is that we didn't use exactly the formulas and there we comply with the numbers and candidly until today and this bit about math there hasn't been any dispute about that we used the correct formally correct numbers so much so that if they had given us the correct numbers at the outset right the correct classification roads for the workers with higher exposure we would have had we would apply this getting ratings and that three would have been on the front end we did rat gets into the mutual mistake where he's saying like going back to my hypo semi hypo of my homeowner's policy if i'm thinking what's a thousand dollars or maybe i'll be close to thousand and one and then all of a said they hit me with well we don't like your neighborhood so now it's two thousand and i'll go look when a done it if i'd known that that's kind of what he's saying that ok maybe you know they'll be like a slight adjustment but decidedly you're walloped with this huge change and we wouldn't have changed policies to you guys if we'd known you were that expensive that's fundamentally his argument kind of like my homeowners if right again i'm making up these numbers i don't remember the exact amount but if i thought i was going to pay a thousand then i make that switch to this new company and then i'm suddenly hit with this giant change that i'm like whoa i would have stayed with the old guys if i had known you were going to charge that much even though i knew you might make an adjustment once you walked around my house or whatever right i think a couple colonel points on that i think again the district judge got it right as to why that argument fails under texas law the first the first reason i think the first reason it fails is that the parties expressly anticipated in this agreement you know you know they're we've all got texas judges here we all know the texas cases say over and over and over again this is a remedy that rarely applies and you have to show somehow that the original intention of the parties that everyone was clear on somehow didn't get reduced to the writing well the intention of the parties here was this is an estimate it's going to diverge and in fact what the district court quoted i think correctly and many texas cases say and i'm going to you from the city of the colony case that both sides cited is very quick quote says an error in predicting a future fact known to be uncertain is not the kind of mistake that will relieve a party from a contract this was fact is within their knowledge not yours right they know they have a better grasp on what their employees are doing in terms of job classification and it's also not a case the factor that changed the premium is known everyone knows it's going to be based on these updated payroll numbers exactly right judge cost and that's exactly the gist of what found is looking they were in the best position to know what were the correct payroll class occasions and what their workers i mean we're not going out to their ramps at the airport to figure out who's working under jet engines and who's working back in the clerical we're relying on the information they give us in their payroll and as this court's aware they acknowledge below they acknowledged in the briefing before this court that error was soley there and so the district court said and this is consistent with section one fifty four the restatement we know texas has adopted the remedy they're asking for ok there's a fundamental problem right there because they're saying they want to avoid this entire agreement but guess what they've already gotten all the coverage we met our obligations and the fact and that's always hard with insurance because you're only glad you have it when you need it and then all those years that you paid and didn't need it you're like oh boy that was a waste of money so that is a problem inherent in people's perception of insurance i'm not blaming you for that or your opponent right as you say at the front end they wanted the coverage they got the coverage although i'm sure you made some payment of claims i realize it's not maybe like my auto policy where thank god i haven't had to get any claims made on but nonetheless as you say then once that wal mart versus kris case where they were that's the case they cited too but it's unhelpful to them because what walmart versus chris says is both the insurer and the insurer deliberately deliberately falsified the payroll of wal mart in order to get to a set premium so they all lied to the state the courts in that case this agreement is entirely a legal one enforceable and that's why wal mart didn't have to pay any print more premiums because they used the concept of an perry deliberate oh if you if you're part of culpable in a legal contract you get no really like the contract for a sale right o'kane or so but in him we've got an important part of that cases where it says look wal mart wants to say you have to separate out coverage from premium in terms of what's illegal or not enforceable and the court said you can't do that if the contract is a legal one and forcible then it's all got you can't pick parts of it and say let's keep this part in place and just make render the other party legal and that brings me to the bear ranch case that we cited too which admittedly you know from judge paul so when he's on the district court bench which was anted to get a partial rescission the agreement they were trying to say that based on the fraudulent inducement of the other party they could pick and choose which parts of the contract should be kept in place in other words don't voice to rescind the entire contract and i think judge costs are probably said you know you can't do that you can't have a remedy that says we're going to pick and choose but that's exactly what service here is trying to do here there's been nothing in the record about are we going back to go i can see all the claims we paid i mean after all we had a much larger exposure base so all i'm saying is there's a reason that you hold parties to the audience but you as terms of agreements let me just ask you the same question about the manuals is there anything we need from the manuals because i don't know we have them no i haven't found them and so are we clear that the manuals themselves would need to create nor resolve any ambiguity that might be out there judge james let me close the circle on that one first of all they're all that part five they says the short answer is no you don't need them here's what we know part five and he says these are the rates that are going to be in this contract are going to be consistent with and guided by our manuals we then go through for eighteen pages and say exactly what those rates are they have not submitted any evidence to show that there is any inconsistency or any problem under emanuel's and the only testimony in the record which is of pages one thousand and sixty to one thousand and sixty two of john matthews stablish is that the rates were done precisely consistent with so the with the manuals so the only evidence in the record is that it was consistent to your point judge haynes no one tried that it would have been on them as the appellant to you know put the manuals in and try to show how what we did was inconsistent they didn't do that they're not in there what is in there is the unambiguous language that this court can trace from the binder through the policy and go on through to the audit and you will see that we follow the math we follow the un and the language and judge smith correctly determine that this contract should be enforced as written if there is not any further question wow well your opponents raring to go so let's let's hear from you m mark you're well and we appreciate it we're glad to have you and we would present your arguments a please tell us where we've all gone astray here with your counsel opposite how did he lead us astray well i think you are counsel made one telling argument that i have to talk about here what he said was if if the parties had known about these coach classifications in the beginning that three point five million dollars would have been known up front instead of at the back and that's not true because the evidence is in mr ma testified and you can find excerpts of his testimony at ninety two and ninety three of the record and he said that they use schedule debits here because the manual premium didn't wasn't high enough to reach what his loss rating was or what the estimated future losses because they wanted to charge six point two million dollars because that's what they thought they needed to make a profit but do you agree with him that that motive went to this point two five schedule rating goes to the point two five and what's telling about that is if the parties when did you know about the point two five years later when do we know about the point two five zero we knew about get to the loss rate if the parties hadn't known that the manual code the manual premium just code times rate was eight million dollars instead of five point two million dollars which was approximately the difference then as mr matthews testified he would have not applied schedule deputes he would have plied scheduled credits which would as i said it's sort of counterintuitive they would have been credits to us they would have reduced the premium so there wouldn't have been three point five million dollars extra known in the beginning it would have actually reduced the premium it would have been a negative twenty five percent not a positive twenty five percent and you still would have gotten to the six point two million dollars so we're not saying the math is wrong we're not saying that twenty five how do you get to retried we trade the deal on how much the point two five is that's what i mean i mean when i was training the deal because the parties there were three policies here the first policy second and third the first one there was an e mail that was outside the policy that said this was the deal x dollars per one hundred the second one is as we say ambiguous and the third one was we're going to have a in between six point two and seven point one million dollars going to be one of those in between those depending on payroll all three of those policies the premiums were pegged based on payroll the amount of the payroll the allocation by code classification but the amount of payroll and that was the deal here and it's very clear from the testimony of mr mathews that that wasn't what was the underlying deal right so to boil it down not really an ambiguity argument it's a breach of contract argument it should've made no difference because you failed to calculate this the way you said you would and if that's wrong then there's an ambiguity may well you know it's a it's an ambiguity argument to the extent that the liberty mutual is saying that you can look at the policy and determine from the policy exactly how you are to come up with the premium you can't do that you simply cannot do that the policy doesn't say that this is a policy that the evidence will show this is what agree with his analysis of four four nine to four six six that we just went over if you look at it if you look at it which i assume you will and have well and you'll see that in now ok what you'll see is there is schedule rating point two five there's no doubt about that we've never died that and if you multiply point two five times the numbers you're going to get another twenty five percent but what does that mean what that means is that liberty mutual quoted and included a scheduled debit in order to bring up these men who will premiums to their loss ratings and why are the manual premiums in there anyhow they're not in there to set the premium they're there because the state requires them to be there and the insurer has the right under the law of all of these states to adjust the manual premium or up to fifty percent higher or fifty percent lower so in the case like this where you have a large insured you can adjust what would otherwise be manual premiums which were never adjusted for the small employers to get to the last rating and that's what the parties did and that's what they expected was going to be done at the back end so they're trying to take advantage of aid form insurance policy that doesn't fit ok thank you thank you i appreciate it and i pretty well thank you this is a very spirited argument we appreciate both sides and your case is submitted