substantive insurance law question so i will address the jurisdictional issue st which is whether the district court's order uncross motions for summary judgment requiring fireman's insurer sought enforcement significantly and sought in force months of the appraisal provision in its counterclaims the st counter claim is what sought enforcement and that's exactly what it got from the district court order it was an order of specific performance ordering fireman's fund to perform appraisal of the brick claim under the policy putting mr ridley putting that within the legal framework picture matter what are the key and i threw that would distinguish those two categories of words so your honor st of all i think the carson decision is distinguishable bad case came up a stipulated consent decree that was denied by the district court and an employment case you're saying that's backed down you're saying that it did not articulate any governing principles that we have to follow as a general matter well authority from this district best says court need not even go to the harm test of the of the carson case and that's that's what starr and so what i'm asking you are what are the attributes when i look at that should i be looking for so terminations i think the characteristic you look for your honor is the characteristic that exists in the west our case the church mutual the food case and the farmer case and here that amounted to an order of specific performance so for example in the west our case it was in order to go up a criminal defense costs something that the corporation did not want to do in the  church mutual case it was in order to provide defendants to pay defense costs something that the insurance company did not want to do just like it doesn't want to go to appraisal here and finally in the farmer case it was in order to comply with a settlement agreement including the obligation to go forth and pay and go ahead and execute transactional documents again something that  the party did not want to do in all three dollars of those cases there was d a mandatory specific performance order requiring performance while you spoke about there being a grand summary judgment well yes there's a grand summary judgment but in western the are which up i'm focusing on because it's drew the line between what what what requires the carson factors and what doesn't there was an independent exercise of equitable power in other words it was not just the fact that you used to just summary judgment order that in practical effect resulted in someone having to do something there was an independent exercise of equitable power saying you do x y and z i'm having a hard time see where they are in that here there is here you have to grant a summary judgment but where is the specific independent exercise of equitable power that says you do this which is what you have in west in terms of making the payments and so as far as if you believe that's the difference between those two sets of mortars you help me to understand why mom if you have to do it you would be so object to the court that that go ahead and perform the settlement agreement and execute the transactional documents constituted an order of specific performance subject to contempt if it was not followed and that's really what we're dealing with here so that case is on point your honor and what is that what is that what is it that leads you to believe that there is the subject to contempt element of the order here because you had a grand summary judgment the and what was contested was do we do we go to this process of resolution as relates to the amount of damages or not that was what was contested and so when the grand suddenly judgments a place that was all one thing that needed to appen which is you have to go through that process but where in the hook for a contempt for to hear your honor the order on page six hundred and seventeen and it really boils down to i think it's just one sentence and  the order it is granting the request by the defendant in that case for enforcement and while the court that opinion itself does not specifically say subject to contempt it is certainly an order of the federal court that needs to be ok well i mean any any granted summary judgment that says to somebody wins and somebody moves and could have a consequence that somebody has to take some action as a consequence of order that doesn't necessarily mean that it's subject to content and that's why i'm trying to get at this this whole chronicle of that thing because if somebody grants a summary judgment order in as a practical  grant you have to serve nationals you need to take you're under the carson test and so what that's what i'm trying to understand why isn't that what we got here because no there isn't a line if you don't do the subject to consent or you're subject to consume you don't have that in all of your honor i would direct the court to two cases in a specific which i think would be helpful to ok specifically in the west are energy while i think this case is an injunction in substance i e insurance company go forth and go to appraisal just like in the farmer case go forth and  i'm sorry in the church mitchell case go forth and provide a defense and go forth and pay what i think that's where the answer to the question is that in the st instance i think this is a substantive injunction but even if you wanted to to look at carson the answer in that flip now is well you don't go to carson when you order have the practical effect of granting an injunction and i think here that was the practical effect of judge trimmers order and if false i think jurisdiction i'd i'd like you to explain why ordering the appraisal is really a matter of interpretation the contract in determining coverage it seems to me that there's coverage for damage you have an expert same there was no damage there was no decrease in the value of this facade but that seems to me to be a fact question and why you wouldn't the appraisal of the the appraisers be authorized to determine whether what happened to the wall actually caused any damage as that does not seem to be to be a coverage question that seems to me to be a factual issue whether that was damage yeah and so your honor i think the answer to your question is found in the undisputed facts of the summary judgment wrecker and what's important about those facts is that my client fireman's fund when presented with that request that all the brick needs be ripped off and replaced went out and hired an engineer from not labs a fellow named peterson he did his homework your honor it inspected the property it went ahead and looked at information from the american version we why should we believe him as a matter of law whereas and as as a factual causation when the other guy said there was six not one thousand dollars worth of damage and your policy clearly covers this particular building ok if they come back and say oh there was damage and we find it was a one hundred thousand dollars damage ok it's done i just don't understand why we're even here on this case your honor we're here because the upshot of what damage to property and what's really that's why you have the appraisal well i respectfully disagree with that your honor under the particular facts of this case and what's important is what what what facts went unreported it before the lower court and the facts were that our engineers said that this brick performed exactly as intended there was no damage to functionality no damage to a static your x what would you expect them to say case your honor where the nonmoving party in this case steel street was obligated to come forth with specific evidence specific evidence that rebutted what we put forth they didn't do that they did not reply that there was no damage to functionality functionality no damage to a statics no damage to less than no impact on value and the conclusion was if this brick performs exactly as intended what did they do in response on summary judgment if you look at to a firm or is ok and there is nothing there on the factual record the only thing if you scour that record i think the only thing the court will find is that on page and so what the effect of the district court's order is is merely to declare the scope of what will be appraised the factual issues that are going to be in the appraisal and that is exactly what fireman's fund asked the court to do we i think much like i heard judge kelly say i start with the policy as fireman's fund did as well that  market and it covers the building as we've gone through her doesn't talk about bits and pieces of the building it covers the entire building and if then it goes on and it determines are you saying that even if fireman's fund could appeal an order requiring an appraisal submitting it to the present in general feel that this particular issue should not be subject subject to the appraisal is that your point is that i'm suggesting two things one of them is that there is no injun that is a distinction but then the response to that sensually is that it asks a district court to tell it whether this issue is within the scope of a president it's a factual issue of was there damage it and it went through and it's correspondence and it talked about its investigation and it's conclusion was that fireman's fund evaluated the claim for cosmetic damage to the physical change to the facade but it did that that does not constitute damage there is damage to the facade only if the value of the facade or the length of time  the longevity of is that issue and since those facts are not disputed and you're seeking damages because there is a physical change to the brick even though it didn't decrease the value that sounds to me like that's is a coverage question what is the meaning of damages does it include physical change therefore did not affect the value of the facade therefore there is no right to recover into the policy and you're not disputing the facts the factual parchin of that that we go to appraisal in order to have that factual issue determined where you are disputing the determination by the expert that there was no decrease in value of the we are and we policy and that remedy under the way the policy is written is to be determined in appraisal the d d amount of the loss which includes causation of what they have a huge had the hail occasion and then the appropriate means to remedy that if any they could have been settled in that in other words you're saying that even if there was no decrease in value you're entitled to recover for what it not not arguing the merits of that position but you seem to be saying two things just now one is you do just view the expert statement that there's no decrease in value and nd regardless of whether there is any degree some value the policy provides a remedy for a change in the surface regardless of the brick regardless of coverage later if indeed there is an award yapped determines amount of loss and a remedy under the policy fireman's fund still in it's a present provision has the right to determine to challenge opera is never done in this case ok so you see you're saying it goes to the appraisers and they can determine whether there was any decrease in value that is for the appraisers that cannot be challenge later by farmers but if they also say even though they find even if they find that there's no change in the value of the facade there is still coverage our steel is intitled to money to repair the change in the brick that is something that might be a coverage issue and fireman's fund  the impression that the dispute is whether the hailstorm coerces zero worth of damage per farm position or six hundred thousand dollars worth of damage per your position isn't is of though there might have been a factual dispute about whether there was any decrease in value of the wall you have not provided any evidence that that's really in dispute because you haven't done anything to rebut the experts findings that there's no decrease in value of the wall so therefore taking this to the appraiser is a waste of time how do you respond to that i'm i think i'm restating their position reasonably accurately i think the response to that is that there was evidence that was presented to fireman's fund and there was on the references to that evidence including the valuation of six hundred thousand dollars approximately for the damage the repair of the damage that was that was a part of the record that the district court had to show the dispute in that and the actual disagreement in the amount of the loss that was in the record for that the district or hand before that with the six hundred thousand dollars figure that you submitted was the cause of returning the brick facade to the condition it was in before the error it had nothing to do with whether there was a decrease in value of the the decrease in value is based upon the cost of repair and that is that becomes a liability of the building and so there is there is evidence that the the  remediating damage to the building right and so if you go to the appraisal the appraisal can say the appraiser can say well i don't think there was any damage related to the hailstorm in reach and zero number or reach a number that's close to the number that you're talking about on the consist with which it's kelly i think was talking about on the causation prime nother words your if i understood you correctly you're saying that it is this effect on the appearance of the break that is  diminishing in value in my misunderstanding you are not or are that that is that is the contention and the issue that would be resolved factually if this were to go to appraisal like all of the other issues that fireman's fund as a green would go to or present to send the be more precise here than what their experts said is that the hail did not affect the life span of the bri the value of the bridge the appearance of the brick facade or the function of the bridge facade did you have any evidence that either of those four things was affected he said there is evidence in the record when you say the performance characteristics against them in terms of the expert that would mean that the function of the bridge was affected and you're sitting there is evidence in the record of that we would say your honor that the evidence is that the performance of the brake over time is affected by the impacts of you know the the impacts and the chips that occurred because it  exposes areas of the break that were not previously exposed to the elements and that was the issue right when start when the time i was youth lighting that has been is characterized sometimes as flaking we characterize it a bit more dramatically the there are effects on the lifespan that was not fully developed in all candor your honor because this case did not go to appraisal but it was presented to the two between the two sides was that there was an impact on the i probably should give mr ripley twenty seconds because we went over with you but not more than twenty seconds thanks your honor the problem with finding that this case goes to appraisal will effectively deprive insurance companies of the right to make the coverage decision in the st instance and if that is the ruling of the court the problem is going to be this every time the insurance company sa