president living the reach of this exclusion claims by employees of this specific insured seeking coverage then he's free documents would have been largely harmonized rather than irreconcilably inflected the insured  specifically including claims by their employees and reps that it's very important and that causes a at it i mean as a negotiating clause making it very clear that the they were to procure for us as an additional insured was to be for claims against by their when you recognize that pennsylvania and new jersey they come to different conclusions with respect to the interpretation of this in insurance contract we think at the time that district court issued its opinion that was certainly the case because of the  that they were not changing p m a that they were dealing with the separation of insurance laws which is identical to the closet in our in our case so so purposes of our case understood as you say that  puts new jersey and pennsylvania law on the same footing that is with respect to the separation clause it's that issue here those two states laws would not result in different outcomes that's what we say yes your honor we do say that and it's an issue i mean it's a really interesting development to have this case come so close on the heels of the last brief being filed because it deals with the exact cost that's in our case p m a did not have very different plazas that severability of interest clause as opposed to the separation of insurance clause so pyrrhic or here in pennsylvania you know we analyze their cause and particularly emphasize the difference between the two and said that they're not they're not over dealing with the and it's one that applies to our case as well so we would say at this point that the law pennsylvania has applied to our case and the law of new jersey earned harmony and it really you know it's a different choice of law analysis because if you start off with whether there's a conflict or not i believe it is believe it that they have possession of the contract and that's what the certificate said the certificate said as required by contract which with professionals like brokers that are involved here the expectation is that is exactly what's required by the contract it's a reasonable expectation from somebody like us getting this certificate now the reason for certificate in given in the first place it's very common practice for four owners in a contract situation  to require their contractors to provide this additional insured coverage because we're exposed to claims by their employees but they're not we have the protection of the workers comp laws and it's very common practice for employees are injured on the job to look for others like the owner to name a has a defendant's because they can't name can you explain why having gone to the trouble of insisting that that be in the contracts and and wanting that the second contention was that the employer's liability exclusion our coverage they were going to do anything anyway so they weren't prejudiced in any manner they wouldn't showed up on day one they wouldn't showed up on day three sixty five they were going to show up at all so as a there are there are two grounds for appeal one is the grant of their summary judgment the second was the denial of our motion for summary judgment and so we come to your honor's with the request that our motion for summary judgment be granted and you have the record the same record that the  judgment to be entered in summary judgment be entered in our favor as part of that when you say to appear legal argument is part of this waiver argument even if it does it depend on accepting the notion  that in a counterfactual world maybe you had you given timely notice maybe you wouldn't have gotten a straight out denial but you might have got something different had there been kindly notice maybe you would have gotten a letter that just said we're not coming in you know that there's there's several it's there but on this record if you look at what was don and what the arguments that have been made that's not an argument that was contingent upon anything the argument that they have made or arguments they would have made as in the beginning  and that's what i'm trying to get you to help me with because i understand the the logic of what you're saying is it would have been any different because it is the night things outright but it there so i don't know whether there's a feeling circularity or something there because if you had given time it's your client who's to say what you would have got from them was would be the same flat out denial that you got but that's always the case when the courts consider the issue of prejudice what your are suggesting is what always be true if you don't give timely notice there's always prejudice but the hypothetical that you're giving is one that i think has to be with the facts of this case and maybe it's a finding of fact but if you look at all the circumstantial evidence in this case it's very clear that this denial would have occurred and they  want my point exactly maybe there's a factual piece here which would need a district court would be in a better posture look at it versus right well an argument could be made to that effect your honor i can see that that we would say that the the evidence and the record is so overwhelming that it should go the other way there's just it's counterintuitive to think the it or just to to suppose that and perhaps counsel can ask answer that but to suppose that the answer would have been different  there's this assertion about damages versus attorneys fees costs what's your what's your best argument for why you know you didn't get everything that you're entitled to get and so there's no dan there's nothing for you to complain about since the verdict was a million there was coverage from several but you were not looking for three hundred fifty thousand dollars which is the get on to the million dollar verdict that we paid not looking for that three hundred fifty thousand dollars from the insurance company we're looking for that for that money from july which had a very clear unambiguous contractual obligation to provide us with five million dollars worth of cover not one million they didn't do that they didn't do it they didn't provide us at the district court is credited they didn't provide us with five million and they didn't provide us with cover for our employee claims by their employees against us so they breached the twice now the district court if your honour's were to find that as we are hoping that you will morning your honour's my name is jay harrison along with a method we represent liberty is case this court has examined this employer's liability clause on at least three separate occasions in brown and root with chief judge becker writing the opinion scott still unsure this company versus the city of houston which judge jordan participated in and also in the brewer case first united states fire not insure am paid for all claims as required by sixteen say of the general terms that your honor the vis specific exclusion with regard to the policy itself and as this court said in scottsdale case and then an insurer has the right to exclude a subset of claims that does not make this is the exclusion invalid or unfortunately that may be but the fact remains am p didn't get what it was contractually p contracted with julie and got nothing because they were supposed to get coverage for exactly this kind of circumstance julie since one of their employees on the m p s property they fall down and get her and and pieces hey that stuff happens around industrial plants and you're on the hook for it you get us insurance for that and that's the contract and what you're saying is not from us though they might have been on the liberty policy but we're not covering that your honor all i can tell you is that we received that what has been produced the record the underwriting file there was no contract that was given it was given after the claim was made after notice was given but the policy itself was issued there is nothing on the record that i  concerned i think the court in scottsdale has said and when it examined the luko case which is very similar to that case where the court has said we look to p m a well here we've got us a period court case saying we looked at p m a two and we don't pretend we're higher than the pennsylvania supreme court we're not but look this is different language it's not the same clause that was it issue in p m a it doesn't talk about talks about separateness we feel that's a more specific and precise way of approaching it and it lays out a sort of a heuristic for dealing with this which is different and we say you know p m a certainly is p m a but this is a different clause different effect now what's your response to that my response to that your honor is we have to look at the interplay of the separation of insureds clause with regard to this exclusion now the  clause does not provide additional coverage it is merely explanatory with regard to the cool look laws itself this court has held on several occasions that this exclusion he is and enforceable and our argument is that once once you open i'm sorry i'm sorry but that's not the question i'm trying to get you to respond to mr harris by my understanding is that we have in our hands now  a decision that wasn't available to the district court and only came out a couple months ago and it says when you read that exclusion of that exclusion clause in connection with this new and different  language in the separation insurance clause you get a different result you get a different result than you got from p m a and i'm trying to get it will answer not going back to the exclusion it's been upheld but what's the effect of this new case looking at those two clauses together well i think i think you are in response to your question the issue is is there anything different in that separation of insureds clause then the clause that was examined in luko and there not your honor and that case and in this particular in the scottsdale case and i go back to the scottsdale case before it examined the exact same separation of insured clause in conjunction with this exclusion and the court said we are not we refused to remake the exclusion to mean the insured seeking coverage or the insured being sued should we be taken any guy so from the from pennsylvania state courts that say hey i may be what you people in the federal courts but we here in pennsylvania it's our law we see that differently of your honor i think we have to go back to what is the law that you examine and that goes to the supreme court  pennsylvania and i think this same issue reared its head once again and that's got stale case when you were dealing with the luko case which had the same separation of insured clause and this court said  follow p m a and that's where i think your honor that's where i think this court has to go with regard to the imports ability of this exclusion so superior court which is wrong that's i mean your position is no they're talking about when they said separation is different from several severance it has a different effect and therefore different outcome p m a stands on its own but this is different they're wrong about that i yes your honor i i contend that p m a is the law that it's been the law for forty seven years in the supreme court of pennsylvania the supreme court has felt that obviously it's seen these cases it has not spoken so it believes the p m a and i think you're guided by p m a as far as his opinion which is once again consistent with the holdings of the third circuit where he talked about the maryland exclusion being totally different than the exclusion that we have in this case the exclusion of the language in this case deals with arising out of the course of employment of the insured performing duties related to the conduct of the insurer and whether the insured may be live all as an employee or in any other capacity in conjunction with that there is the definition of insured which includes a m p and also july a in this case so we look at that and say maryland yes has has a ruling with regard to a clause in our honorable bill policy that does not apply as had that exclusion american wife a very i'm sure it's companies that would have written that are for your honor as far as i understand there was no there was no request for first of all five million dollars worth of coverage number two right that's what you're saying all i'm telling you is that in response to what we have on the record the underwriting file use we provided a lot of generals for mercial general liability policy to joe lay and then at their request responsibility and there it's on am piece premises he's covered they're covered so is it joe lays covered a m p is covered this is the one subset under which it is not covered and that's what that's what the employers liability exclusion is for in this particular insight would be a pretty likely thing that happened with that i mean if you're going to have an accident and certainly employees of somebody doing maintenance work like that that would be certainly something you could see happening absolutely it's a plant that has many contractors on there so that there is there's coverage for when an other contractor gets injured so yes there is not an illusory coverage that's been provided can y because it has not been fully argued it's not been decided by the lower court it is an issue that has that has not been fully explored and we believe that it should go down to the lower court with regard to the late notice itself the letters themselves reserve the right to assert policy defenses throughout each letter and not only that your honor it was a situation where we were responding to what was put in for front of us by a m p of saying it's the purchase order it's a purchase order and we said it was not covered we asked them for and the other part i think you have to look at is there serious prejudice here serious prejudice and if if it had been if we had been notified earlier on not five days before a settlement conference maybe there's a different response because you have the opportunity to review entirely what was going on now but you did say that we have no obligation we have no obligation absolutely the letter said that and we also reserved our rights to assert any and all policy defenses thanks very much your honor it specifically provides in this was a negotiated clause between two hundred for all claims well it says no it doesn't say coverage it says additional insured they will be added as lang's y an additional  different argument here today arcelor mittal plea negotiated this contract they did not include language that said claims against our slower middle plate by julie's employees and if there's anything it's your best argument really that that  lay didn't didn't believe or didn't understand that a c m wanted to have received me and he wanted to have coverage to prevent exactly what happened here they did not want to face lawsuits from your employees and you were going to ensure i'm against that your best argument is that that was not communicated to you effectively your honor we can only go by what is the in the contract here and that is the only evaluation that we have an evaluation is that they were to be names additional short i'm not saying that's necessarily the best argument the best argument is that when that is read in conjunction with sixteen i that indicates that we provided workers compensation coverage for them and that at the time of the accident there were clearly factors why would you read that in conjunction with that when clause thirty two says this contract represents the entire agreement of the part and section sixty section sixteen has a provision for workers compensation coverage for arcelor mittal play to be added as an additional insured in the worker's compensation coverage at the time of this accident are similar plate opted to treat mr green a after the accident not as an employee although he clearly was under the facts we would argue he was clearly an employee and they would have been able to obtain clearly an employee of a rather that now i thought that there was a distinction between temporary workers and employees and that somebody who showed up on your grounds once for a couple hours would not fit the definition of the way that would fit the definition of temporary worker what's the what's the argument for why he's quote clearly an employee as you put it when he showed up never in his life before that night was there for two hours fell down he pennsylvania courts i don't believe are going to look at how often he was there or whether it was his first or last time the question is control when he won't have the power to control when he walked through the gates yes when he walked through the gates are slim middles managers told him what to do they don't employ me joy employs me so if he thinks he's an employee of to lay and a and p thinks he's an employee of to lay is it enough for you guys to say well you directed him where to go on the work i mean under that theory there's never completely immaterial it is immaterial because if the court finds that liberty should be providing coverage for empathy the three hundred thousand dollars in addition to the one million would be covered by that policy so whether we had one million five million to ten now did you communicate to get at the terms of this contract i believe we did when initially came in yes your honor but your honor if i can address and you know that that didn't you know wasn't somebody aware that they had an issue  coverage and the right amount apparently julie wasn't aware arcelor mittal despite the fact they had to figure insurance did not pick up on that and get that did not pick up on that your hon honor we believe that if you look at the complaint in this matter the complaint even the complaint does not ask for july a we're just not demand that you lay should have provided coverage paragraph sixty two and sixty three of arcelor middles declaratory judgment amended complaint clearly jewel a fail to add them as an additional insured at this point in the appeal there's no contest that they were an additional insured and that's what judge schiller we believe he was absolutely correct when he looked at the complaint looked at the contract and looked at what happened right i really don't have a lot more to to say the on what i said before answer your questions i would add they have there is in the record the testimony of the claims handler or liberty that he would have had he prejudice do liberty reside in the fact that they were unable in timely manner to raise the defense that greene was actually an employee of the a and he there was eight months between i mean i have a technical procedural response which is as i i believe i'm correct that each of these opinions certainly the scottsdale case is unpublished and should not be i think the big guiding david doesn't bind us i it's in our policy the separation of insurers and found that there was in the end it was a material difference but the case was decided before the superior court from pennsylvania look at the difference between the separation of insurance decided the scottsdale case but you did not have the benefit at the time of the thinking of the superior court which is in a group is in a i would suggest in a very good position to understand the law of the state of pennsylvania advisory but not binding the superior court supreme court of pennsylvania is binding right superior no question i'm not here to argue that that conflicts point of view but the issue that was presented to the supreme court of pennsylvania was not the separation of insurance more than you bargained for what's your response we got what we bargained for we didn't get what we are going for we bargained for it's very clear in the contract or agreement that we were so we were to be added as additional insured and protected he says it's not clear well and he exactly that but just to be abundantly clear plans by their employees to we don't get that if the district court is correct in his report ons i think to that is we had to do is put on the worker's comp coverage now i don't want to speak for him but i understood him to be saying you got that through the worker's comp coverage not on us that you declared this guy was not an employee you would have had coverage if you did acknowledge she was an employee so you got what you wanted what if the question of whether it can do think the evidence is so overwhelming that he was specific inquiry and here that record in the record he's a supervisor he's not some guy walking around to the premises he's the jewel a supervisor there for a very short period of time all of this business about he didn't know use a dog following orders as we would argue