not only covered third party liability but also covered a ca's on direct claims against current burgess for a c s first party damages this is a standard some of the cation agreement that is contained in had the only logical meaning of similar language was that it was triggered by third party liability it did not in compas a party's first party claims for damages in its own right now judge hellmann did not have the benefit of travellers and certainly did not he which is three million four correct and that damages cap doesn't differentiate between direct damages a consequential damages contract damages negligence damages or fees and so on well that's that's a whole other question and that's what is included error standard because it wasn't raised yes as a plain error standard but i don't think even the need to get to the difference between a negligence claim and a contract claim for the simple reason that what we're talking about here is the pluck ability of one three six and the encompasses both but what i believe they see a attempted to do here is they try to parse out this this reasonable proposition and obviously you have to read all these contracts as a whole and if you start with the standard that's just stating the normal the normal standard of care that any professional has to be a doctor a lawyer design professional but then that parties embellish at the elaborated on that in the section that they see eight is referring to when that's two ninety three and what they said with respect in these two have the ready conjunction these two clauses because they relate to the same subject matter they said that the carter has to perform its services with such reasonable promises to cause no delay in the work and they have to perform in a manner consistent with professional skill elevate this recent promptness into a direct promise not to delay the construction project and they say that any breach of that that any damages that naturally full flow from that by definition  bargain damages and that's the principle that the district court applied here but what you have here and i think the track the bill case in the second circuit makes the distinction personal clear what you have here is not the direct benefit of the bargain but you have lost profits on secondary collateral agreements and of course i'm referring to the lease agreements that a ca had with its proposed tenants and that's the benefit of the bargain that it's that it's trying to recoup and that is by definition it's a secondary agreement a including but not limited to loss of use loss of profit or claims for delay correct and we believe that when you read that proposal paragraph f section four when you read the mutual waiver a consequential damages and when you read the incorporated a c a i a contract there's no can't be any reasonable dispute but that the damages that recovered here except for except for the construction except for the one three which we consider direct damages to which they're entitled that all those under any definition of consequential damages are clearly consequential because they relate to secondary agreements lease agreements that the developer had with proposed tenants and that you can see you use a as an alternative relief the alternative relief you seek would be for entry of a judgment for three million four to nine five six five which was the amount correct that you were the value of the contract the value of contract right was that does three million four include attorney's fees the attorney's fees that you'd be entitled to receive would be that would be entitle to receive me within the cap or beyond the cap well if you apply the damages cap they would be s that that issue judge i guess the best way i can answer it is i know what you're saying only arises if you reject our initial or threshold argument is that they should be limited to the one point three million dollars and through the extent they're entitled to any attorney's fees under section age don't limit or hernot of arguing and now i'm just asking if you say that we could enter or should direct the entry of judgment through for three million four with that included tourney's fees would include prejudgment interest or is that something that would be beyond the cap and well not believe that would be subsumed in the cap is well i guess hope springs eternal i thought maybe they'd say well it includes everything doesn't include everything i think was on campus and judged but  inclusion what we're really asking for here is for a plain reading of the contract we're not asking for any across the board rule because this was a specialized contract the question that a ca is never really comes to grips with is why in this heavily negotiate a contract whether a sophisticated deal councils has to kate a business entities if they intended one three six to have no effect or to be trumped by any of these other provisions why then didn't they fine as a consequential damage damage that is not included absolutely and that's the genesis of this this entire mutual waiver consequential damages of course was the pretty case in new jersey supreme court that dealt with  delay and the new jersey supreme court said those were delayed damages and of course i could you know going back to the attorneys fees i think it's probably fair to say that attorneys fees are not considered consequence of damages under new jersey law which might support the argument that they're in addition to any to the limitation of damages but that there is there is judge there is a section h that allows for the recovery of  we have to cut right to the chase you have a fought the good fight on the indemnification provision and you you try to distinguish travellers and judge hellmann never had travellers before him now we've got investors savings which is very very clear and the bulk of judge coleman's decision is based on his finding that the indemnification provision will cover first party claims investors savings and travels both but that's just not so so if that reading is correct of those cases even though the the guts of of judge hellman's decision is is wrong isn't it insurance on each of the contracts that's ten million dollars in insurance when the fees at that time were projected to be under two million dollars there was a clear indication that there was no cap otherwise would be no reason to require carter to carry ten socialism your friend across the aisle let me ask you just what the last side from moment just as a matter of fundamental fairness you paid them three million for for the project from the walk and it was built and now you have a verdict and let's include the attorneys fees that were awarded and the pre judgment interest that was awarded that's almost four times what you paid any sat making sense yes you clear intent was there was no cap and that was demonstrated by the fact that they then were actually in why does the limitation of liability slash damages provision mean why is it in there if that's not what they contract so where is the conflict let me just ask it one more time now that the indemnification provision conflict will probably i speak only for myself go where is the conflict and i don't believe the serious you know yes roger are you are ok as a matter of new jersey law is it your position that first party claims are covered under the indemnity yes your honor because the investors case never address that issue of the investment case investors case relied on the district courts case and travelers and travelers clearly said that first party claims are not absolutely part in new jersey both courts were concerned with a for liability incurred to a third party accordingly the indemnity provision here has no application when presented as a shield against claims asserted against  it's talking about trying to bar a counterclaim and i don't believe that this court was faced with is a first party or third party claim it's on reason fact what they did do is they reject court relied on the dish record and travelers context in which the word indemnity is used are indemnity is used in conjunction with ours and emissions ours and emissions affect only the cost and timing of construction and that as a first negligence which which a car has waived and then we're just better than that but but your honor just to go back to there were we did recover third party claims the money we paid in fact this one point three million dollars ok we recovered that under two nine two two that's a direct damage claim it was for payments we made to qatari construction and the additional construction costs because of errors your friend across the aisle concedes that that's liable to a c n a for claims for indirect special or consequential damages including claims for the lie but when you have what i mean clear the matter when you have to that's an example of a consequential damage that was not the find all the late damages as consequential as the pack oak court has explained when you have language including but not limited to that is not a definition that's just yes these are examples of consequential but that same damage could also be direct given the circumstance and in our situation the delay damages are direct under two nine to three the duty not to delay but even if you listen to carter's argument this is just a statement of standard of care that statement of standard of care because it's in a contract because of becomes a contractual obligation when you reach a contractual obligation whether you call the standard of care or direct duty that's a breach of contract and damages flowing from that breach are direct the that standard to delay so you know regardless of whether you call it just a separate duty or contractual duty if you or if you call the standard of care what you include standard care in the contract it is basically no no your honor because there economic law says to you if you do have an overlap a complete overlap negligence would be part but in this instance carter has to demonstrate compelling reasons for the court to take up that issue the carter participated in drafting the verdict sheet which we told the jury jury there is an overlap essentially between negligence and breach of contract jory don't worry about the overlap because court case you gets only the higher of the two standard no your honor i believe that there i believe that the court should take that issue up because i don't believe carter's demonstrate compelling reasons public policy reasons why this court should take up that issue on appeal we had no opportunity whatsoever at the at the trial level two different to differentiate damages between the rich and what does the economic loss doctrine apply here i mean aside of the side from what you say and i know you say we should be considering it but assuming we go into contract claim the right has to do with the overlap between the two and in this instance we went to the jury and told the jury don't worry about this overlap because you have on because they see as i'm going to hire the two amounts so you're did not specifically raise it below they did they did not they went to the jury told the jury you know that yes yes and assuming we were to look at an under pla is it not plain error when where and when they're liable to pay almost because if you had the attorneys fees that were originally given although with depending that may change and us had prejudgment interest you're almost back to thirteen million again if you think that's the right result under plain error don't you think that perhaps the fairness the integrity of judicial proceedings might be questioned by the public if that were to happen when they only pain were paid three million for and the raja got built now your honor would win when they say that order contracts with a designer or a very large designer and says you're going to sue more risk and i want you carry insurance to so the insurers to provide in this and that is exactly the situation here we have insurance and so you're saying going back to judge roth question when there is ten billion dollars of insurance then you can get the ten million dollars here that why that's not what we're not what you're saying no i was just you i was addressing the public policy issue no i don't believe that the issue is just limited to the amount of insurance you know with with the reason your argument just because they're required to take out a ten million dollars policy the parties must of agreed that that would be a possibility they could buy a whole policy the what they did in when they added this provision to nine to to deal with arson missions they agreed to shift off financial responsibility for hours and missions to carter that was the goal that's why the parties out of this to two nine two was to address our result in a mission that and a car lack of a better word trumps everything that went before it yes your honor that that trumps what was in the terms and conditions of another draft agreement which the parties did not suggest i don't see any you say that they don't count i say there's a there are there is a conflict only conflict you can point to was his error and the admissions thing really find hold harmless they used the word to stand there and they didn't ask carter to indemnify a ca for a season wrongdoing only for carter's wrongdoing that was a clear intent for the party to shift the financial responsibility to carter and they asked her also car insurance to fund that and then that same provision which is unheard of in these architect agreements they added that to the modification they had the stuti not to delay this was very important to a cia and they added it and they asked this very large company carter to assume that risk for what was going to be a very substantial payment and if it happens to go beyond the payment i don't  ca had absolutely no problem drafting a contract the way they say this one was drafted when it came to keating who was another defend in the original and thank you and what they did in this is a one sixty four in a one seventy seven of the record in their contract with keating they included a time is of the essence clause that was coupled with a liquidated damages or so if you delayed it so important was about you not the way they're going to be liquidated damages look at the insurance clause if you will it is not limited to errors and emissions coverage it's the full constellation of commercial coverages that you get commercial general liability one immobile liability worker's compensation they completely sweep all that aside and say that this was a funding mechanism for their indemnification agreement and that's not what it is is a standard insurance procurement provision and as job growth pointed out it's putting the cart before the horse to say that because there may be insurance that covers of particular loss there also is legal liability insurance policies don't cover until and unless and until this legal liability so this whole notion that this is insurance  for their interpretation of the indemnification agreement the only way you can even begin to entertain that is to strip all the other coverages aside because if you see that you see it wasn't and incidentally they could have said in that insurance provision they could have said had they truly meant it and not just argument lawyers arguments they could have said and for any claim that's covered by this insurance one three six is out the window section four of the proposal is out the window they didn't do that they could have done it very easily so they're just giving too much credence too much importance significance to a standard you know they say it's customized that is but but within the industry and that's what the proof was perini case or all these clauses  r typical the only other thing i'd like to address because i see my time is out it's just that this concept of the waiver of the negative negligence claim the essence of the economic loss doctrine i explained in my brief hopefully why you commute out on the a doctrine but i really want to get to the point here is that it doesn't matter whether they say that it's a negligence theory or a contract theory even under a negligence theory you don't vitiate the the party's contract you can still look to the limitations on damages the other parts of the agreement so so quoting this a negligence claim whether you say it's some of the economic loss doctrine whether you look at the terms of the contract doesn't get them any farther than if they pursue it as a contract right would you turn off the tape would counsel approach the bench please