here please the court my name is scott harris and i along with andrew hamilton represent the cardigan mountain school in this case the cardigan mountain school peals the dismissal of its complaint on the disfavor entitled to a litigant to at least make a claim for discovery now the facts that we say support our claim are really just three and they can be found in paragraphs thirteen to fifteen of our complaint and you've d them and they are as follows first of all our complaint a wage that the audit report that there are facts is supporting the existence of the missing insurance policy it was an audit report that reported that the auditors had discovered a general i believe policy covering a million dollars worth of general claimants for the one nine hundred seventy one nine hundred seventy one school year now we're talking about the policy with new hampshire insurance company existed covering the type of liability we're concerned with in the one nine hundred seventy seventy one timeframe in the the auditor who actually was the principal in the firm that conducted this a would testify as we alleged in the complaint that in the that he would have or his staff would have noted had there been any change in the policy issuance in the year prior to the so we now have one nine hundred sixty nine in one nine hundred seventy with the inferential evidence necessary to say that the policy with new hampshire insurance company existed in the sixty nine to seventy time period where we've established that the policy existed and was written by new hampshire insurance company who would say that he understood that there was policy there was a policy insurance of insurance in place during his tenure the sixty seven to seventy timeframe and that there was no change of insurance company he didn't say that he understood that he said he does statement was i don't believe that there was a change of insured correct he said but that's not the same thing as saying there was no is the statement i don't believe that there was a change in insurance now the question of this case presents is does not fact i don't believe there was a change in interim in combination with the other facts that you've inferences that it is entitle to be viewed with has got to be assumed as a fact that supports the contention that there was a plausible reason to go we that the policy was in place during that period because and the reason that i say that that that the court took an evidentiary view is the question really then is what does he base his belief on and we don't believe as a matter of pleading that that it would be proper  or acceptable to try and limit out all of the reasons that he would believe that that's a matter for cross examination and something that would certainly be the subject cross examination as that it district court stated in her opinion it's a forty year old recollection what is the business you say with respect to whether there was insurance in sixty seven what does the business  say with respect to whether there was insurance no matter the carrier he says that there was insurance between one nine hundred sixty seven and one nine hundred seventy and that he does not believe that there was any change in kerry so he he w state that there was insurance in place in that time can i ask you about the coverage issue yes is there any there's an complaint there's no reference to what the coverage was other than it was a general policy or what the claim is that you'd like now to have covered that correct that's correct and why is that allowable knows how can you make a plausible claim that you have a policy that covers because that's what your claim is you're not pleading just abstractly we have a policy but you're claiming coverage how can you make that claim without identifying what it is that you want to have covered and what the policy contained that would cover it so that's that's a good point and i would point to the agenda and page sixteen which describes exactly what the coverage is and  t there's been no question and i think we're inferentially entitled to if you take a look at their insurance coverage as it's a strike this is basically an all risk policy i don't think that the court could think of the type claim against the car get out of school that wouldn't be covered for the reasons outlined on page sixteen for the insurance company that's described by the author so we didn't do any any any see g l any comprehensive general liability policy i've ever seen has lots of exceptions and exclusions for example usually have to have a special rider for things like slander and defamation you know there's something or type of policy is needed to cover medical first the first requirement and the thing that we were attempting to plead is the existence of the policy itself and could that but that can't be a claim that we would care about to put it just the surface terms in the sense that whether you have a policy or not is not a dispute that has any significance you must be claiming that you have a policy that covers the claim that's being brought have and we go through it at some length about the issue of you know did you find this general liability policy that covers we don't you go ahead we don't specifically say in our complaint however a thing in the record that indicates whether the insurance company even knows what the claim is i don't believe that there's anything specifically referenced in this complaint speculation and then draw inferences on those references to create the existence of paul's wrong on evidence regarding in one nine hundred seventy to seventy one c to prove the existence of a sixty seven sixty eight c does not work your honor asked whether the broker were i'm sorry the order made any statements about whether they had insurance during the policy period the fact is that the manager indicated that he was certain they had insurance but to it's not just point when asked about whether they changed carriers the best you could come up with is i don't believe it changed  and then from that point to get to new hampshire insurance company issuing policies the best that they could say is we used ab giles as our broker and upon information and belief  giles had a personal relationship with a new hampshire insurance company and directed most of his clients there you are that's nothing more than speculation and what you see from that is an inference about the existence of a policy and i suppose he had said i said we did not change carriers we had insurance i believe we did not change here was why wouldn't that make it plausible when the business managers says that they obviously don't have the policy we were you know first of all the business manager wasn't there when the seventy to has information about was from september of seventy through june of seventy one business manager left before that's we're it's it's in their complaint they have the person that they are trying to suggest cre inference about the existence of the policy based on some other own vision wasn't even there at the time that  believe if there had been a change that we would have you know he also doesn't suggest that he was the order at the time his company was nor does it say that he is the order so we have to do is to infer that because his company ordered he knew about the what it was involved in it and knew what was done in the audit and then you have to take his belief that if he had been involved it would have been noted that's compounding inference upon inference why is that not plausi matters argument that he does not believe that they change cars which again is not and no they didn't change carriers we didn't change carriers or i believe we had the same carrier it is but i thought you had that  know i'm sure that we had a policy we had a policy i don't believe so to say if he does measure it said i believe we have a policy don't we don't be sufficient or i think it's nothing more than speculation but it goes a step further when suggest to me that in general laws policy cases can get past the pleading stage and i don't really have a good feel for what the standard is or last policy case for because you don't have the policy in the last your indication that there is a payment to the insurance carrier policy number declarations following your policy to list the previous year is a renewal in this case we have none of that we have a policy from three to four years later saying that a new hampshire insurance company was the company where somebody is saying we use this broker who generally sent most of his clients to new hampshire insurance companies that's not enough to get them there they need to come up with some concrete evidence that there was a policy point in time it would get this coverage about the exit where that policy actually existed was actually issued and what its material terms were that's their burden and it in a  policy case what they're seeking to do here is to shift the burden and say you new hampshire insurance company have to conduct a search and disprove the existence of this insurance policy the first circuit has repeatedly said that's not what the opposition is so what i was you just really don't have it plausible reason to believe the new hampshire insurance company was carrier for sixty seven sixty eight based on the evidence presented is that because there's no contemporaneous documentary evidence is  do i will tell you that well if they had people that was said we used new hampshire insurance company for ever that was our carrier we would have a tougher fight they don't have that kind of evidence or what they have is speculation and that's