system has q technology which the port authority hired to build a portion of that light rail system and liberty mutual insurance company which issued a choice q performance in payments to ensure the completion of the construction contract he says q entered with port authority dispersement it made on their behalf but that obligation was only triggered if liberty mutual made dispersants in good faith in this case liberties liberty dispersed approximately three point eight million dollars to the port authority and the performance difference well it might explain what liberty mutual  a contract that proceeded and the binding company should have i guess taken over the project earlier and in theory then the move the idea would be that the bonding company could have completed it cheaper  and what it ended up it could i mean it was early as march first of two thousand and one that's a bonding company was aware that there was a problem so routinely at that point a bonding company would go in and begin to do an investigation to determine if if there were a default in the in the underlying contract if if it could be completed for for the to determine exactly how much in could be completed for the contract price for less than the contract price that would not happen in this case  waited eight months before it began any investigation which which which occurred on the beginning of november or the end of october in two thousand and one in march was that the notice of default that he would have discovered earlier that the that there were cheaper alternatives for completing the construction project how do we know that well it did discover that in november of two thousand and one when its own consultant william fact so if they had hired him six months previously to two to diligently follow what was going on in this destruction project then they would have known this is  a determination that liberty mutual had not acted in good faith i mean had acted in good faith and it was not permitted to do so at the summary judgment stage of the proceedings because there was evidence that well no judge because if the if the burden is our production is the burden that's that shifted and lip and the holes come back and and produce evidence of a lower possible completion cost alternative which they did were insufficient which is what it did in this case if the burden of production had been shifted looking at those the existence of that evidence in itself would have been sufficient so there is a distinction between shifting the burden of production and shifting the burden of persuasion referred the hopes motion to a special master initially that special master issued a proposed report recommendation in which he proposed that approximately two hundred five thousand dollars be exempt for legal fees before issuing this are in our special master provided both parties an opportunity to comment on it liberty mutual objected to it claiming that if the figure was more than the hose that requested and the post judgment legal fees cannot be exempt from attachment at all to be fair a special master then asked both parties to  special master then held a hearing on the matter in which liberty failed to offer any evidence or testimony regarding attorney's fees after the hearing a special master issued his final are in our which he recommended the exemption of approximately five hundred twenty five really the notice in march provided by the port authority to liberty into a church q was not a formal notice of default however the formal notice of default issued  letter and did nothing until after the they received word of the bankruptcy which was in may to october the work good progress between march and in fact all the way through the period of time that the contract was it was rejected significantly a major subcontractor well stone was hired to do seventy five percent of the work so the work responding your question work did proceed diligently in fact during that period of time h s q met some of the milestones which they have not met at the time at march when they got that notice significantly in the formal notice of default in october october twenty fifth which was never received by mr hope was present here in the court the president a chance to liberty did receive that it complained of the same problems that it raised in march even complained of milestones that had been certified as being achieved at that time and i think address the first appeal concerning the hoax appeal of the judgment rendered against them by the underlying court on summary judgment i would like to address your question liberty is not required to proceed this was abundantly clear in the court's order know i'm not prepared as i stand here today because that issue was never raised below and i but absolutely that is the case and i'd be happy to provide a supplemental authority to the court of let you know if we need anything thank you you the critical issue that the court looked at at that point in time was whether the allegheny port authority contract could be completed for less than the remaining contract ballots plus the pe some of the pond what the record affirmatively shows is that after h s q defaulted on the contract after it went into bankruptcy and after  contract was rejected in bankruptcy there was no viable alternative there was no way that contract could be completed for less than the remaining contract balance time to retain an expert to provide a report to show how that project could have been completed for less then the remaining contract balance of the people some of the pond and helmets failed to do that the pellets never provided the court with any declaration with any evidence to show how that contract could be completed can could not complete that contract that estimate is moot it's irrelevant where in a just you rejected that contract in bankruptcy it could no longer complete irrelevant because after that contract was rejected in bankruptcy there was no viable alternative available for liberty to complete the contract for less than the contract and suppose the people some of the bonds indeed all the other quoting page one sixty nine of the pellets excerpts of record this is on page two of horse order lines nine through ten the record shows quote indeed in the actual event the project was officially completed by others for more than this amount quote in connection levy was granted to defense to file in late expert report on the subject but defendants did not do s procedure section forty seven point zero two zero in this production was inactive for the specific purpose to satisfy the requirements set forth by the california supreme court in the randy own case of the hoax there was a hearing before a special master appointed by the court and during this hearing they sought to claim attorney's fees and cost for proceedings attorney's fees and cost that's where we're drawing the line at this point we believe the special master about one hundred thousand dollars at that point he went beyond what they requested thought that they requested too little in some categories and didn't request anything in other categories and increased the amount that he was going to give them to a little more than two hundred thousand dollars at that point we said wait a minute you're going too far you're you're giving them more than what they asked for at that point the special master says liberty you raise good point if the special master then issues in the order saying ok host i want you to  request every single thing that you can think of related to every single proceeding you can think of whether it's ancillary or not and we want you to assume that you're going to take these up to the united states supr and request everything that you can possibly think of to get there dollars in attorney's fees and cost that still wasn't enough for the special master the special master then on its own went beyond that and increased the amount to five hundred twenty five thousand four hundred fifty four dollars liberty believes that this is cleare given the only the only money to special master was talking about here was the cost to the whole of defending against liberties kase didn't have a bunch of other predators or family around in the undergrowth wanting claims all the way to u s supreme court both that and other ancillary proceedings related to liberty yes your honor for example fraudulent transfer action  first of all opposing counsel makes much ado the timing issue student actually in the good faith issue and he has claimed that the district court did not address the timing issue i e liberty's failure to do anything between march the assessment of alternative completion costs now even if liberty mutual had been diligent in in its investigation in not beginning that investigation until october of two thousand and one that would be that that would not be enough for good faith good faith requires the choosing of the least expensive completion cost liberty mutual did not do that it paid  three point eight million dollars without considering its own consultants lower alternative completion costs now the question of good faith itself is a factual question issue additionally i'd like to mention that the alternative completion costs that william sarber offered to liberty inc are all included one point seven million dollars and continued its investigation because the one point seven million should not have included in that should not have been included in those figures in doing so in failing to take this into consideration to district court and liberty aired now with respect to the attorney's fees issue i'd like to note that liberty tries very hard to distinguish between post judgment and prejudgment attorney's fees under the statute under forty seven point zero two zero there's no distinction made between pre judgment attorney's fees in fact there's no there's no indication of or reference to attorney's fees at all the district court said under that statute attorney's fees were necessaries it made a legal determination addresses it was presented with the question of whether or not due process had been had been given now in that particular case under the facts they were dealing