the building was substantially damaged and so was some of the crop we immediately were notified of that by a g p the owner of the building that contracted with the general  demand against us too resolve this with the answer to the legal liability against us and wanted it resolved they want to resolve soon we are told that to select the a t p needed to be resolved soon for are in the next sentence in the second coverage purchased that is the duty to defend coverage that was purchased in this case by cherry tree it sued is defined as not a legal obligation at all but is mere allegations particularly specifically definition number eighteen suit in quotation marks state any addressing of those issues after until after this court rules and then he would get back to them after this court rules so that's respected not before the court and it is very case specific in policy language called decision which stands up he went to the supreme court the counter claim that you referred to a moment ago where that language you referenced or paraphrased appears also goes on and specifically policy language analysis as to whether selective interpretation of the policy is correct and application the policy is correct or whether it's not under the case law and i respectfully submit that not only was it not so under the threat you undertook to agree to pay damages and went back yes in consultation with selective insurance company who we invited to participate asked to investigate and determine the rights of their rights and duties of the policy in our rights and duties in the policy so we didn't just go out there willy nilly deal with this ourselves we immediately told selectively gave them formal written notice that there was this formal claim against us for damages and we asked them the legal obligation stems from the underlying underlying facts that occurred in the accident or the relations between the party that's the first legal obligation of the second there was a formal demand a legal demand for pay which is the second legal obligation never crystallize into a lawsuit because they were able to mitigate damages eliminate the cost of defense you have a sort of back of our simple concepts of a simple back to the simple concepts that if you gave you your result absolutely so we're really hears in a way as to whether that legal obligation that you fully participated in your say the and ensure was notified was given the opportunity to do so not only participated behind the scenes they didn't come forward yes and participated and they sent reservation writes letters and you continue in essence the construction that selective seeks here whereby the term suit just in into the extent that this court must interpret the whole policy is a hole in the words contained in the policy referring to the definition of suits is clearly appropriate would you agree that in the  arguments on both sides and i would say he struggled with that exact concept but he addressed that exact concept he thought and determined explicitly that in the interests of justice where he was looking at the case and where the he thought the parties were going with this case he would be best to get the input of this court to help him and help the parties know where they stood going forward on the other affirmative defenses the other exclusions that selective is claiming as well as the entire claim case in terms of mr o'gallagher you may respond lawsuit following carols and you can agree or disagree with that but that's what the circuit court term in the motion to reconsider shareef you argue there was the legal obligation to have the amounts in question to reimburse the construction surety for the amounts paid out in the performance so the performance bond issue was injected in the proceedings because it was in that the cherry tree spawns and we would have had to pay our construction surety that is the the explanation cherry tree offered the circuit board for why they were legally obligated to pay in the absence of the l and i do submit that that independent of how we come down on care and whether or not a suit is required in all situations that is not a suitable basis to find there is a legal c g l policy no period bright line rule no suit no intend the obligation central might looking at that rulings the not so fast is a grave area here but central lake was looking at different need for a lawsuit by an adjoining when the owner and the court you know i what i maintain here is got it right but there is certainly some merit to that point that in that unique situation here we have a business this is the type of business view that happens over and over again in the construction industry we have a general contractor that asked to obtain performance as a routine aspect of the businesses found themselves in central like water where the government was telling the public utility you better incur money to clean up pollution that occurred in the forty there's no comparison in one case you can certainly see why the court determined there was a explanation on the record for why they were legally obligated to pay as a performance bond so i submit never submitted a brief in opposition to the summary judgment motion now we're not in the record because it wasn't ever done and there was never oral argument on any aspect of the summary judgment motion not in the record in the transcripts or before you our supreme s claim against them was valid court was not to say in that situation funds are routinely paid to injured party in settlement of claims without the necessity of a lawsuit the funds paid to resolve such claims are generally understood respects doesn't count properties case is the california power one case that they cite is clearly not all of these other cases other than desert mountain properties are all environmental cases circle cases including the california