pennsylvania law in entering that judgment the district court extended state common law far beyond where the state courts have taken it the court did so in two major respects one by allowing a claim for indemnification for of how the district court extended state law i want to make clear what this case is not about it's not about fraud or intentional misrepresentation i'm not withstanding the rhetoric and un g s brief that's not its claim here and the state law remedies for that kind of conduct are very clear and are not an issue the other thing that's not that's not going on here is this case is not about whether un g had a remedy for losses it may have suffered as a result of negligence by and it clearly did have a state law remedy the problem is that un she waited too long to assert that remedy waited years too long and they didn't have a cause of action until there was some harm or that there were damages suffered so it wasn't to the conclusion of the arbitration that it really had a claim to know that that's not that's not correct respectfully your honor for a couple of reasons one is in fact the fifth circuit in the t r g case pointed out on precisely the same facts there is injury in fact at the time the reinsurance was placed because the reinsurance was impaired at that point and was subject to pennsylvania law is is although you when she tries to portray it as this equitable expanse of broad remedy you know sort of a free roam free range to do justice that's not at all the way the pennsylvania courts apply it it is a remedy allowed to someone who was forced to pay basically to compensate a third party for injury that they suffered as a result of someone else's negligence it's not a remedy for injury that the indemnification plaintiff suffered directly as a result of that  object to the instruction because the jury instruction is very broad as to losses oh we have salute the object of your honor because we said this claim should never have gone to the jury in the first place we moved to dismiss on that basis i thought out of conference you said wavered on it and let me get back to you on that i don't know if it was a specific objection on the record maybe i'd like to see where that was well your honor the at that point the judge at the ship had sailed i mean the judge had already said there is preserved your honor at that point of the judge had made his position very clear now what we have here is un she was not seeking recovery for an injury to r a s that it had to make make up it was seeking recovery for its own injury and i think that's clear among other places if you look at page twenty one zero seven of the appendix that's the summary damages exhibit that you and she presented to the jury and they list if basically their claim is we had to pay our insur because of you and we didn't have reinsurance and therefore you should pay us well again that would be a perfectly legitimate direct claim against an honest within the statute of limitations but it was not it was brought in we ended up trying a case  where the relevant events that happened fifteen years earlier witnesses had died documents had been lost and obviously memories have faded so what they what they were allowed to do and should not have been allowed to do was to take this state law claim that's designed again to deal with third party injuries and to basically turn it into an end run around the statute of limitations to pursue a direct claim against a on it's sort of like the difference between liability insurance and collision insurance you know you don't recover on like under liability insurance for the damage to your own car it's all for what you had to pay to the third party for the damage to their seat you argue that section five to reason that is that what you are that is what we're arguing your honor that's your basic argument well there are two basic arguments one is that you don't get indemnification for recession at all no matter what the underlying from your i made all account that was wrong as a matter of law he rejected that as a matter of law correct and then the other the next argument is that even if you even if indemnification is available it's only available if could have been liable to r a s directly and u n c styria on that was that it could have been liable under section five fifty two of the restatement for negligent misrepresentation it was  in built right the pennsylvania supreme court did not adopt section five fifty two wholesale for section five fifty two says you can there's a cause of action for negligent misrepresentation when misrepresentations are made in the course of one's business what the pennsylvania supreme court said and built right is that the claim is available against somebody who is in the business of supplying information there's a big hit and that's why you know you get more than architect with the scent was business of supplying information it's not like the gas excavation case there i think that's exactly right that was what your argument but i had trouble trying to get my mind around how an architect would be in the business  oh absolutely he's absolutely in the business of supplying information your honor because what you're getting from an architect you not getting anything you know product what you're getting is instructions basically here's how you build this building and don't write in fact it was not even the construction plans it was it was information for purposes of ordinary risk ratios the same thing i'm sorry my own loss risk ratio is the same thing they're not writing they're not the same thing your hon because that is not a ons business that's information it's supplies we're not denying today on supplies information we're not and we're not denying today on supplies information is part of doing its job as part of its business but that is not a ons end product which is what some of the pennsylvania cases post built right say is the test and it isn't the point i mean even looking at five fifty two it says false information for the guidance of others in their business transactions i mean in the the architect situation the contractor it's a business transaction basically incorporates this information you know this this wall will carry a five hundred pound load or whatever and it doesn't the contractors out here i mean i maybe i'm making you your argument for you it was appreciated i guess it was because they wanted to say oh well that's that's exactly right your honor and business anybody they're giving on sophisticated information so they got their business that's exactly right your honor the business is procuring information for its customers certainly like as any business does as any product seller or service provider does it provides information in the course of doing that you can and he insists the katyn seller sure you can't just stand there silently but it's not for the guidance of of the reinsurers in fact quite to the contrary and on is it acts as an advocate for its customer it's negotiating against the reinsurer to try to get the lowest premium and the broadest coverage tha that it can and are yes as witnesses made it perfectly clear that while certainly they appreciated the information from from a on they were not looking to any on to advise them or to guide them they were part this was a big professional insurance company and they were to incorporate that information no it's not at all like god like a design professional an engineer or an architect as in the built right situation where the builder is completely dependent on that builder doesn't know where to start without that information that's not at all the kind of situation we have here and i think the but the pennsylvania cases subsequent to built right make that very clear the the excavation case the judge mckee mentioned talks about reaffirmed that section five five two applies in pennsylvania only to those in the business of supplying information to others and also used that but the alternative term professional information providers and as i mentioned the subsequent pennsylvania cases talk about you know the end product the stock in trade that's sort of thing so un she's claim we said we say should never have gone to the jury at all and is not in the business of providing information to others it's an insurance broker its job is getting insurance for its the pennsylvania supreme court and don't write did not adopt the text of five five two and they made that very clear an excavation technologies that what they were doing anything from bill right opinion right that's correct the court was describing section five five two but that's not what the court adopted the the the court's states accordingly and this is a page two eighty seven of the atlantic second reporter accordingly we hereby adopt section five two as a law in pennsylvania in cases where information is negligently supplied by one in the business of supplying information such as an architect or design professional and that is that no no no no it just lowered it made it narrower because the the language of section five five two just in the abstract and as judge pollock read it would apply to any business a car dealer car maker reply and salesman contract or negligent misrepresentation is available against one who is in the business of supplying information and as i mentioned the subsequent pennsylvania cases in federal cases and this court's decision in azure vs chase bank for example  said that the claim did not lie there because chase bank was not in the business of supplying information to azure that wasn't its business i mean it did supply information to him it was in the course of chase banks business but it was that was not that was not chase banks differently it it may or may not be the case that a reinsurer in the position of r e s would rely on the information and is providing the information to them but the point is that it's not a business to be there advisor we do product as their own and you know be guided by them they're interested because looking at them they're going to decide whether they want the dealer well that's exactly right it affects do we want to sell this reinsurance if we do what's our price or what other terms you know exactly this way any sophisticated seller who advises a customer on things that the customer might not otherwise know you have an exception under five well that's right i mean it's you know  dealers give you information on mpg and horsepower acceleration and all of that and that information is important and you may well rely on it but that doesn't mean that they're in the business of providing information or they were an advisor to you or anything like that and that's the difference between the text of section five five two at least as i don't know that any court has applied it quite as broadly as it seems to be written but that's the difference between the language of five five two and what the supreme court did and built right your client not denying that it supplies information what we what we are saying judge flow better is that it is not in the business of supplying information its end product is not information it's not advice it's end product is insurance so he has a company who because the law is clear in pennsylvania that because in effect as an economic matter united national as a result of the arbitration have to pay the economic case t r g case were the opposite to the facts in this case in the to case the in her which is in the position of united national the insure insurance policies before it attained were insurance it put itself at risk that it would not succeed in obtaining we in charts and it turned out it didn't here it's the  national made it a condition with a on it it would not issue a single insurance policy unless it was assured by aidan that reinsurance was in place so the tig decision your honor makes a big deal out of the fact that the parties were returned to the status quo as it existed just before three insurance was issued here the parties were not returned to the status quo it was it was the opposite and i'll give you a second reason your honor why texas is is very different it is very very different i think it was builders it was because the supply happened to be eight in damages case and we certainly agree that and i think everyone agrees say on agrees that in a in a damages suit when the first lawsuit was the damage the suit that indemnification with lie but the point we're making your honor and i'm going to cite some supreme court of pennsylvania cases to you in a second the point we're making is that it is utterly irrelevant what label whereas push on its arbitration demand they chose to characterize their arbitration as one for recision they could just too easily sued for damages and the result yes  interests limit of the result would have been identical and the reason it would be identical is because in pennsylvania the damages to someone who sues the negligent misrepresentation is out of pocket losses five fifty t knowing anything for when the insurance and it is our position your honor that it would be legally absurd and as a matter of public policy it's are to say that everything hinges on the called had there been an earlier lawsuit would it have been called for sedition would it have been called damages he didn't hear and the reason he didn't care is because the the party  situation ends up in the identical place and this is the this this issue this policy issue this is a policy issue very much your honour's this issue was addressed frontally judge s submit your honor that it would and we think that this court judge trying to tell us about decisions in pennsylvania and it is true that the issue comes up in damages context but there is no decision in pennsylvania that says that in indemnification has been employed to change equity that's what they tell us in the will it case the pennsylvania supreme court said that indemnification quote will be recognized in cases where community opinion would consider that in justice the responsibility should rest upon one rather than the other and we heard we get the same thing from the superior court in the in the wilkes barricades in the embry case we get the same we know because of case number two case number two is the space that gets us here today and in this case we know the jury in their verdict form the answer was there any region tiredly caused entirely caused by the agent well isn't that the very essence of vicarious liability isn't that the definition and blacks watch action or if if there was harm to us if we had to pay the economic equivalent of and five two because as i rebuild right and five fifty two the architect supplies the information to the contractor who then basically incorporates that relies upon it in his business and if the you know if the load is that will not bear five hundred pounds it'll they're only three hundred pounds and if you architect was not competent if you will it's giving a cause of action because they sold that advice here and he the contractor used that is why he has a business here we have factors and information about wrists going from a on to ras and based based on that information rast doesn't use that in its business because it's going to reinsure that's what it does it uses it to make the decision whether to purchase that would open the floodgates that every time there's this heated providing of information that someone relies upon in making the decision as to whether to cinch the deal and in fact the the complaint specifically talks about that talks about the that it's done in the transaction of you know relying upon it in deciding to  go with with you n g i don't see how that fits with by fifty to infiltrate your honor with respect to just agree if that's perfectly with five fifty two and built right and excavation engine earlier supreme court case was it was correct it was adopted it was it was decided before five fifty two was formally adopted but boortz says actually don't write talks about boortz judge mckay don't write says the following about  one answer with respect to this i what i'm saying that the built in the business built right says in pennsylvania we're adopting five five two but we're limiting it because i mean restatements don't you know aren't automatically adopt limiting it to the person who's in the business of supplying the information they can supply the information and the invoice comes back we're paying for that your honor first of all i should point out that a on a trial about half a dozen times admitted that they were in the business of supplying information the the arguments that that you are really discussing is whether someone can only be liable rejected because there was a case in the middle district of pennsylvania twenty years ago and a case called palko that said just what your honor saying it should have to be a seller of information and in built right said no it doesn't have to be a seller of information they rejected it it is suspicions that the the speaker is providing information a on could not have broke to reinsurance without providing information that's not about four tests not a but for providing information they couldn't have done it that's not the test now the question you're right and your complaint allege that they were soliciting the participation of other companies to act as re session errors your complaint does not is not framed that they were providing well i think we we don't use the we don't since about four tests we do said they were providing information but if you look at applying what it believed was pennsylvania law and they were looking at cases in illinois for four input but it's decided under pennsylvania law so what we have here is the controlling decision in pennsylvania this is critically important we have the controlling decision in pennsylvania from the supreme court which is built right as it in canst by excavation and built right says w not agreeing with telco so we know that you don't have to be the seller of information we know that you don't it doesn't the information doesn't have to be the engine aim is to probably use those words and not the defendant akin to the architect and built right who is a professional information provider correct your honor it does and it ultimately finds for the gas company this is critical that fines for the gas absolutely the epitome of that professional information provider said they were soliciting participation of other companies that's what was played in the complaint that yes and as part of that your honor the  core function of a on when they are soliciting companies to purchase reinsurance is to provide the last statistics they are they have no marketing materials well it this is what it says it's five hundred five hundred pound load bearing wall it's this and this and this contractor does it wrong they want said they were getting paid for the information judge and what were they getting for they provided drawings and they provide i want to see something else about excavation the reason why the plaintiff lost an excavation is because the gas company was required under pennsylvania's one call act to provide information to contractor so they knew were gas lines were it was it wasn't because they weren't selling information it's because they had no peculiar interest in the transaction they get no benefit from the transaction in in our case a on was receiving five million dollars a year in commissions and in fact there's there's a comments to section five five to comment d comment d specifically says that five fifty two applies if someone is receiving provides false information in connection with the transaction we're receiving commissions as  business of the words and the and the real the issue the number the issue judges what does it mean peculiar again does it mean you have to say here is the information write me a check or does that mean that in the course of the transaction as a result of the transaction there is again a ons gained here was enormous and if if so if the rule is somehow read to be that you have to be a seller of information then paths i don't have to address the other if i if i had to it may well apply the path that he chose to address is the path that says that the judge has the discretion this is a purely discretionary issue he has the decision many decisions and eastern district and elsewhere that say it so so judge randell it's a purely discretionary issue the church have the discretion you also have a second path and he said it may well apply but he chose not to use it the second know your honour's can affirm on any basis including one the judge didn't use here the underlying issue was the towards misrepresentation because that's what the the arbitration was about and the damage liquidated because they were provable and proven by u n g a trial based on accounting records that simply laid out to the dollar the amount of loss for insurance and that's the amount to the dollar that the jury  retrospectively that's what trials are about in the unjust enrichment consisted of the fact that un she was supposed to receive receiving for years and years and years reinsurance payments from ras and they didn't receive that money it took it took years of litigation finally get a jury to accept that that is the money that was shelled out by my client and judge good before i get to the pre judgment interest with the court's permission i'd like to just touch on a few of the points that mr katz made one is he talked about built right rejecting the palko case it most assuredly did not reject the palko those cases reasoning what it rejected was  s conclusion that an architect or a design professional is not up in the business of selling information that was the distinction of the supreme court and felt right drew in that discussion is that pages two eighty three and two eighty four of the court's opinion and in the atlant reporter but if the bill right formulation of in the business of supplying information is almost verbatim the same as the formulation palko the boortz case has no application here not only was it decided before built right but the court in built right said the elements of the negligent misrepresentation tort under aborts are different than under section five fifty two they're different than what we are doing here that's of pages two seventy eight and two eighty of the court's opinion and judge pollock in this case also said i'm not submitting this on the basis of boortz which requires a special relationship and all sorts of other things i'm so so meeting under five fifty two and they are different that's an appendix page twenty seven sixty six  mr katz referred to the judge suite decision that's to prevent case in new york that was obviously a district court case decided about twenty five years ago judge sweet sweet was trying to predict new york law he said there there is no precedent for allowing  indemnification for recession in new york but i think i think in fairness i should do it the only state court case that has has said anything close to that is the american home case which you and she had pointed out to this court in a a letter after its brief was submitted and that case subsequent to us he's lettered the new york court of appeals has taken review of that case a so whether that even reflects new york law is an open question now in talking about interests mr katz said that  essentially what you when she recovered was the last reinsurance and that really gets right back into why this is not a proper indemnification case it did not recover for and some injury that rests offered it's it recovered supposedly for this loss reinsurance is it's an equitable remedy but that doesn't mean there are no rules that doesn't mean that it's just you know a license to do justice the pennsylvania courts require damages not the economic equivalent of damages which is the term mr katz kept  using and this was would not have been the economic equivalent of damages anyway had rast sued for damages first of all would have had a proof fault and then it would not have or back every dime it would have recovered because when it when it entered into the reinsurance contract it didn't expect that it was going to pay no claims it would have had to prove that given the information it was it was provided it would have been reasonable to expect claims in a certain range and it would be entitled presumably to recover the excess so would have been a just give information in the course of the business transaction i think that's the core of the distinction now that's not to say that there are i don't think that's necessarily to say that that's the only way said and they say it says section five fifty two is more specific appearing to apply on its face and legal action against those individuals who in the course of their business profession in which they have a peculiar interest supply for some information for the guidance of others they really don't make they don't limit the application of section five  negligently supplied by one in the business of supplying nation but that's that's exactly the passage and they reaffirmed that i think is as judge mckee pointed out earlier in the excavation technologies case where they where they focused on the nature of the business there's no question that that information was provided in the course of the gas companies this miss but it was not their business to provide that information that wasn't their product now i promise i'm going to talk about interest so so let me jump to to that  free ranging license to a district judge or a trial judge should do justice it's not allowed as a matter of course in any case except contract cases it's not unfettered discretion the pennsylvania supreme the pennsylvania courts allow pre judgment interest or what they call delay damages where somebody is wrongfully withholding property or money that belongs to somebody else it's not and it's not every time damages are awarded in fact the case is expressly said that that's not pennsylvania law it's  think mr katz referred to the sac case that's a case where a bond was was given to one daughter to hold in trust for another daughter and she didn't she she converted if she didn't give it to that daughter and prejudgment interest was awarded in that case  that's not a normal damages type case and so discretionary and it's an abuse of discretion standard how can we say there was an abuse here well i think you i think you can say there's one abuse or because i think judge pollak made an error of law in concluding that this kind of a case would warrant prejudgment interest under pennsylvania law this is not the kind of of you know unjust enrichment sort of case that not a disk or judgment exactly started to scorch my property or money wrongfully withheld it's a jury found that we were libel well that's that's