classic quandary be travelers casualty claimant in this case for my client this is something to see their teeth into because as a result of the lower court's decision my client classical entry has been denied any recovery under its policy of insurance we submit to the court that the mechanical application of the two year limitation period that is in the policy of insurance should not be followed in every case and it's not m and without giving way to the two year limitation period if that isn't enforceable amount of time is a reasonable period of time we still have to focus on when the claim accrued and in this case we would submit that the file and now and in fact as far as the property damage claim is concerned there wasn't even a proof of loss that had been submitted by our client but yet travellers did pay out on the property damage claim it isn't your problem but one that you really bring up in a way in bringing up is stoppel by bringing it up too late you didn't plead to stop will early your problem is that because you were negotiating with the insurance company about this you knew about it and you were negotiating because of it you well i think that the stoppel argument i don't believe that it's been waived there was no opportunity to amend the complaint and i think that the question of the stoppel use if it is a fact is a factual of course makes sense since it dismissed the case based on this limitations issue but what my argument on the a stop will claim is is that we're not for close from raising it should this court deem that the two year limitation period a cruise at the close of the date of restoration which was in may of two thousand and fourteen and if the court should find that to be a reasonable interpretation friends i believe and one could argue that on the date of the loss you can assert assess what your your losses are because if your rent roll this case is not a loss rent case this is a business income extra expense case the the policy itself states that the insured a will be paid the actual loss that it sustains during the period of restoration last eight to thirty two that is the proof of loss that or that the claim that was made subsequent to the and of the close of the close of the date of excuse me that was but according to what i think your adversary says that the company it calculated damages nine nearly nine months prior to expiration doesn't this document demonstrate that yes it does but it was the question of when the proof of loss this was filed subsequent after this was filed there were conversation between the parties more investigation on the part of travellers exceeded beyond the two year limitation period if you were to consider that limitation period as commencing on the date of the physical loss but that would go to the argument that the lower court didn't really address and we we contend hasn't been waived because we can we can still move to him and should this court determine the two year limitation period a cruise on the date that the damages are calculable and the matter was commenced within two years of the date of that proof of loss or the date of that claim which is at page two thirty two honors just to clarify a few things i'll be happy answering questions a court may have but not only was he a stoppel argument not addressed not brought up in the complaint they never argued it below before the southern district so i'm not saying they had to put show they travelers did anything to lol then it's the fact that they wouldn't have to bring the suit to get the relief they sought and that's the standard first stop which is their burden to prove anything and they clearly haven't done that d v of the allegations in the appeal for the first time  there isn't a single case out there that's cited by counsel that says you should have a different suit limitation period for business personal property or business income when they're all contained in the same coverage for the  in one form the one policy form covers this is personal property business common extra expense and it also says within two years of the date directors go also damage occurs they haven't cited a single case that a court splits them out a matter of fact the elbow for so long as the claim is ascertainable prior to the expiration of the suit limitation period which in this case was on august eighth or fourteen now that's when they submitted their claim to us when agreeing that was  three months after the loss that the insured first submitted to business income loss the business income losses determined by looking at tax returns profit and loss statements bank accounts and once they determined that last they submitted they could have already done that well before august but the point is by august eighth or fourteen nine months prior to the expiration the suit limitation period they knew what their damage was they knew their claim was that same number it's in the lawsuit here and within that one period prior to the expiration of the suit limitation period they had two options they could sue travellers or they could ask for an extension of the suit limitation period which happens all the time and in this case class it was not only represented by an attorney by that point x prior to the expiration  outset retained a public insurance adjuster who clearly knows the limits of the suit limitation period and the fact that neither of them did anything is telling the first time they raised any of these issues was well after we'd already deny coverage how to answer questions a court may have otherwise the rest of the record thank you i'm sorry that the court also had raised regarding the fact that a claim was put in there had been ascertainable before the expiration of the two year period if we determine or if it's determined that that is the day that the claim accrued the date that it was ascertainable as to what the actual damages were and that's the language of the policy then having commenced an action within two might make certain but what the policy says because what the policy says number one is that the claimed that is recoverable is actual loss that the actual loss calculated as within the period of restoration that's clearly set forth in fact the period of restoration doesn't even start until seventy two hours after the date of the of the physical loss and it ends either when you start a business again in a new location or whether or if you've repaired your building and you've gone back to business in your in your building the problem for your argument is that the policy also says no one may bring a legal action against us unless the action is fraught with and two years after the date on which the direct physical loss or damage occurred and is analyzed by the district court it doesn't set out a different limitations period for different categories of loss well i would argue that that is self presents an ambiguity in the insurance contract because it's clearly applicable that two year period is clearly applicable to property loss on the date of the property loss the loss is complete it's that day but business income an extra expense laws are ongoing that's why there is this acknowledgement that there is a period of restoration when you are having that loss in order it doesn't make sense for the date that set forth the two year  that set forth to commence on the date of the physical loss when what we're referring to is a different category of damages an ongoing loss category of damages so that thank you thank you thank you both for the argument today and unusually that is the only argument we have on for today so i'm going to ask the