moved to compel arbitration and invoked the delegation cause many around didn't challenge the making of the delegation clause and in cases where a delegation caused it is in play the united states supreme court did that neither of those findings have been challenged and neither of them are are at appeal are all that question isn't on appeal so it's our position that under rent a center the other side of the been questioned whether or not there was a delegation well the latter half of your question is correct the delegation clause was never challenged here so getting to the front part of your question it is is judicial stop a horse of a color i have to say it is it's certainly not we certainly didn't characterize the underlying contract which was the basis of judicial style in the motion to compel arbitration so it was it was never anything for that you but the judge to for the district court to initially bring to mind judicial stoppel so yes it is a horse of a different let me ask you here's why i'm i'm hesitant i think it's a close question i see where you're thinking about it look let's go back this way i think if the party advancing arbitration had put put an issue or a factual position in front of the court say that's a lie i suppose they can stand up and say your honor at this stage before you consider the motion for judicial arbitration we have a stop judicial stop watch it why he's here because we didn't put anything in front of them the district yes they did but we had never made an assertion so i think i think if your instincts are that it doesn't apply in this case i think your instincts are correct because there was no factual search and all from from the parliament from the from the party upon whom judicial and once the court had figured out that as he did twice that there was clearly not mistakenly a delegation to the arbitrators it simply needed to go and refers to arbitration but he didn't do that it went on to decide the merits of many lands defenses to arbitration and did that in two steps first step was of the original hearing on the motion to compel and the court decided that virginia's insurance statutes regulated the business of insurance and contracts fell within the insurance statutes is not the delegation for me while the delegation and its our commission delegation was both of them and the court had i don't think the court had any authority to decide whether karen ferguson reversed preemption applied at all that but we're not in this of the issues not with those web issues once you make it ok to fail they respond that right well that's the that's the way it works but if you're asking where does the challenge have to reprice it's in the pleadings but here you make a motion fail that comes from you yes and then the response comes to the compelling of the arbitration and so if that was your your problem is the response didn't have in it this magical lang here is what render center says that it is a pleading it is almost like a pleading standard to specifically challenge the specific agreement in front of you what are they but how do they get it part of the court well they filed the complaint i suppose what they would say is that having read hell it doesn't matter what it says well we don't want to raise that issue of the paling is their response isn't that the poised you are saying they should have it that point made the argument that you know we've got a delegation no i don't think that's true and i don't think granderson or stands for that principle i think what brennan center says is that if you're going to challenge and you are pleading if you're going to challenge the underlying contract as a whole which they did here you have been challenging the delegation plus  found that the whatever the challenge should have been was in the response to the motion to compel didn't look at pleadings so if i'm wrong on that count it certainly is doesn't affect this record because the district court was looking at course with any of that and the citizens of any of you and let me push back on that the third circuit and the six circuit both have found have have done what we are asking you to do in this case have compelled arbitration on the delegation i don't remember the just report coming up that being a friend to just report but the third circuit said we're not going to decide all those questions that's for the arbitrator that's the law so if the court this court chooses to say well look you got reversed we see we see is scott cry and i have the privilege of being for you representing many land on it take what i prepared to do out of order the first thing i would like to say this whole argument about the delegation clause and it was a challenge paragraph thirty three of the complaint specifically alleged that this contract that they have is a subterfuge to avoid state regulation of insurance and their patent shows that too but paragraph thirty three specifically says the agreement is an attempt to circumvent virginia's insurance worker's compensation law without limitation including paragraph c thirty eight point two thirty eight point two three twelve which is our provision that says no insurance contract not no policy says no contract of insurance for insurance issued in this state may do two things it cannot have any kind of a clause or any provision that a requires it to be interpreted according to any other state law and be requires arbitration and you've got the insurance commissioner of virginia who issued that opinion in one thousand nine hundred eighty and said you must change your contract you can't have an arbitration so if that were the issue if the issue is when you challenge this clause it was done from the the reason that the only reason i even said i why i almost didn't want to speak but the only reason i brought that up to you you make a point i'd move on and then it goes to this their argument they keep saying this broad arbitration clause that you have to challenge the delegation provision in the arbitration clause the arbitration clause there's one contract here one contract paragraph thirteen is what talks about arbitrary but orders have said that you have to know and you have to direct may not divest the courts of jurisdiction well that's the delegation that that challenges you if you don't negate anything to the arbitrator's you are violating our public policy i don't know about that you could have a court that has jurisdiction and then   the same prohibition that we do in our insurance co image is by operational blog the it in it says it's void it's void it's not it's not voidable it's not not a matter of enforceability it's a matter of it doesn't exist and and so that the reason if i said that judge i mean in this case specifically in the ferguson act absolutely amp's the federal arbitration act and that's the baby case in the national securities case so  i do i do and but however have said that your honor you should affirm what the district court did and the district judge had more than sufficient grounds to exercise his discretion to stop them from even arguing this is a contract reinsurers the reason they made that if i can back up again to go to timing here it's interesting to me this issue came up on the from after applied had or you'd on their motion to compel in their rebuttal they got up in their counsel said well this is a contract of reinsurance that's when this came up the district court was prepared to rule and as it may do you know they're wrong about it and i don't understand it but i'm i'm i'm i'm certain i'm as spokesman what you said was this came up this issue arose after they got up and argued this is reinsurance that's corrupt thought that was going to lead to therefore put that in play they should've kept their mouth but one hundred i don't know the judge the court was prepared to rule in the normal course of in the normal course of activity interpret in this contract under normal state rules of contract construction and the district court had would basically have the same conversation you would had with them and their counsel stood up in rebuttal and said well this is a contract of reinsurance and the court can interpret this contract it it  land directly and unequivocally responded to that issue that the delegation clause is embedded is embedded in paragraph thirteen and the immediate response from any allow me to think about that you judge should if that happened let's say that it was forced to go or betrayed by and the arbitrator came back and said i find that this is an insurance contract and it says no but if it's invalid it basis that specifically so if we have an insurance statute in this case our statute thirty eight point two three twelve which prohibits arbitration prohibits the interpretation of any contract of insurance so you don't need to state statute that you have to have the state statute if if we had a if our statute if thirty eight point two said any insurance contract may have any insurance contract may require binding arbitration we wouldn't be here today we'd have to go to arbitration he said there you just say what you just say the judge when he said there was something specific in a substantive policy preemption right it's true because under our insurance that's your next question is this then are you saying that you can look at this visually and know it's not really insurance yeah you know the court and the court did that i mean the court until the absolutely you can you look at our statute that finds a contract of interest not a policy a contract of insurance and that absolutely required to them and the one thing i would say about the jute there is this issue of judicial stoppel i think that the court had more than adequate discretion to to do what it did and this the whole that the only statement that this is not a contract of insurance to try and get around it so it's a contract regarding reinsurance your honor that's where all this comes in play that you know they are from so in this product in wisconsin barred from something in vermont said that it wasn't reinsurance in california relied upon you know by the because their counsel said it's not reach or so i think that there was more that but that you don't need to approve his exercise if you can absolutely say that he had the authority and the responsibility to point which you were wrong correct candidly but i i believe that i believe the district court had more than adequate discretion to say you cannot have your cake and eat it here that sounds like a that sounds issue about it and then the argument about all the supreme court under the f a a about here's here's what applied underwriters once you rule they want you to rule if there's a written contract that has an arbitration clause in it you must send it to arbitration and that gave us a handbook on how to interpret arbitration cases but they make this argument about oh well there's a clear a clear and unmistakable and the district court mentioned this to its first order that there's a clear and unmistakable language to arbitration that language your honor that spring court cases are clear you don't get to that so you decide there's a valid contract and because our statute says the arbitration and the deal with which is the same thing that arbitration provision is void it never it never existed so there's nothing to even look is there is there a clear enough mistake bill language about what is going to be arbitrary you never get to that you you always have to look at the validity of the statute because thirty eight point two three twelve says it's void there is nothing reverse preemption you you would only get to the reverse preemption in this case if the contract falls under the insurance statutes to begin with so you have to interpret the contract as a whole the district so really the argument isn't over whether there's reverse preemption or or question it's i do it's the question of who and the virginia statutes set up no procedural framework for deciding who so even insurance statute on the question of who gets to decide that a little instruction which undermined the whole idea of virginia's law that prohibit operation clause of insurance contract but you say that every contract have to be all first we have to look and little bit but we knew as you think oh i take it even the best why you think all of this you don't think is going to be resolved that way but you think all these discussions we've been had they all they present may present contract contract of insurance but i'm going to still decid