contracted to build a retail fuel center in its contract with the project owner there was a provision that stated any movement or floating of tinks resulting from the cumulation of water in the tank excavation will require removal and reinstallation of the change yes i sixpence as precisely what happened in this case one of the tanks floated after it had been installed in the excavation hole work that yes i was doing needed to be redone insurance policy the trailers issued to b s i excludes faulty organ and acquit workmanship or construction and so the issue presented in this case is whether the this kind of inadequate workmanship that was experienced on this job site is the kind of inadequate workmanship or construction that the policy excludes before addressing the legal issue legal question i wanted to provide some facts that i think are important to the analysis of it these are all undisputed apps it is undisputed that the installation took place in what is called a  three kings was contractually required to protect their work from the adverse weather conditions it is undisputed that the changed were lowered into the excavation hole between december fifteen  fourteen at some point there anchored some disputed that a pump that was used to remove water from the excavation was pulled from the excavation and it was undisputed that the project owner acknowledged as court with very clearly construing california law and the allstate case and i believe that's the st aired of the district judge made here is that the district court went directly to the old state case as opposed to looking  idaho so the fisher case comes of idaho and in that case much more recently in all states the idaho springs forgotten occasion to look at this very exclusion while they had it they had an occasion to look at course of in allies in that issue what the court it is it looked at both the product in the process if an issue is taken from the dictionary of workmanship and applied both the i know supreme court did not say that the exclusion was in big u s that's not why they ruled against the insurance company in that case and i think that's critical that the idaho springs were to not find or make a ruling that the exclusion see me company i'm not really sure but it's in that case in two thousand it's still the idea supreme court who now is saying that if you do have two different reasonable interpretations of the contract language and the contract is question in the nd half of the ensor which distinguishes this from all state is the circumstances of our case and i think there are two distinguishing features in the allstate case the insured was the doctor's office it was the  target in the insurer property was the medical equipment that was located in the office space the they would have been removed by a tron tractor and again it's not there were a record i presume that it was the landlord that was every put on the building so the contractor and allstate was not a party to the insurance contract or an insurance policy the true threat actor took the roof off didn't protect the opening in somebody else's property the doctor's appointment inside was damaged it's quite a bit different than our case where the insured is the contractor and we're actually insuring the construction project and that's what i do i mean i agree with you that it's it's pretty different than having the difference across but it's easy to understand why it makes more sense to provide coverage in that context than that in this context where it's the contractor to the subcontractors o all but but that's not what the rationale state was a and also we were just looking up what we're trying to figure out what the meaning of the words was so why is why is the consideration you just identified relevant to figuring out what that what that cause of the policy means well the portal state again turn of this the dictionary said it means both workmanship means both probably process and decided that we have to pick one i'm not sure you have to pick one to mean a completed project as the those who were in the exclusion i'm sorry counsel when the exclusion come into play though if there was a completed product before the policy terminated so for example if there is not a file acceptance completed the if the project could be accepted without anybody knowing for example that there it was a construction floor effect of some case which could manifest you know a day after project except that this policy would not come into play because at that point the risk it was would have transferred to the owner and the owner presumably would have its own insurance to cover the project of the property at that point and sought one thing that covered by the resulting loss clause sure but frankly because there is no resulting loss the loss itself is limited to so what happened was because there was not adequate a that resulted from the inadequate ballast in the example that we used in the brief was let's say the when the take floated let's say a stub or a gas line for example and that caused an explosion that's the kind of thing that is picked up in the resulting loss plus the explosion would be the result in cause of loss and that's an explosion they're covered cause of loss and then the damage from the explosion would be the result of all in damage from the result because it was in the explosion damage would be covered but in this case the damage was limited to what was faulty which was this the installation process that this is a torch tank did not but it's not as a matter of law at it i think well i think that was an error because as a matter of law the rain could not have resulted from the floating tank there was rain involved before the tank floated so the rain can't be a result of the floating when there was rain before the florida i see that i mean that the other we have the flood endorsement of the earth movement endorsement to those apply here they do not apply here there's there's an exclusion for all the n adequate or defective construction and workmanship may only be mentioned once in the policy construction isn't mentioned only once for example at page three  the policy says completion of the product include side preparation including demolition fabrication assembly installation erection alteration renovation and similar construction activities so even if we were to agree with you on workmanship exclaims to me how at least some of the last year wasn't as a result of all the inadequate were defective construction argument on either workmanship or construction what damages here do you think we were to decide that the resulting loss provision kicked in and retracted travelers argument provision and that the only thing that wouldn't be covered is what the water filling filling it up with balas that that wouldn't be covered but the damage to the tank would still be covered yes i have trouble understanding that so wanted to explain to me how that would be under it if we applied the result even if we apply the resulting last provision out that would have been caused by the sufficient information on the record or is this a reason to remain and because i noted that both parties did not want to really manage for the resulting loss or damage issue that i'm not sure is this a tribal issue a fact is this something that the district court judge should look at we should remain and for the district court to look at more carefully and make some findings and willing again on the motion for summary judgment or are you convinced that we need to be able to make this finding argument that the result would be that even if we rejected both arguments as to what the resulting loss was met if the resulting loss was meant if we got to it that all we could do was pick one side or the other even if we rejected both of your legal arguments as opposed to letting saying telling the district court what we think the proper test is and then saying to the district court on you should apply that whether it's  judgment or trial i'm not sure of a legal principle that would require us to pick because both sides took an absolutist position if we rejected that absolute this position  some of these other issues would still be on board resolution but the record is actually fairly clear on this one hundred and seventy seven thousand dollars involves a couple of three things there was some damage to the tank that needed to be repaired there exception has an exception but we will not pay for any cost of correcting for making good the fault and it was your defect itself including any costs incurred to tear down tear repair or replace that would be the excavation that would be why it is a matter wall the resulting loss clause doesn't apply here all of the damage was limited to the tank and the installation process which is not covered under any of these for their ears i want to go back to the all floated because that the excavation became buoyant because there was already ground water than there was precipitated and because of the inevitable ballast the tank moved within that excavation and that that was the only part of the project that needed to be reaper form because of this best judge bennett you pointed out the language in the permanent works definition which is why we believe that when you're looking at this policy if we have to make a choice between process and product process is what this exclusion would apply to because this this policy actually ensures all those things you mention the application assembly installation ruction alteration renovation this is a builder's risk we are ensuring that on track or in the process of construction so we have to make that choice in this case in the th circuit told us in all states case by case look at the overall circumstances of the case this case begs for having us s been chosen and finally on all state the court didn't say that you have to have a final project to be completed it says you have to have an object to evaluate