good morning jeff jeff jerko here for the appellant ball ram trucking i would respectfully request three minutes for rebuttal it is our position in this case that the district court heard in three respects the first being that under the circumstances of this case finding that central transport had standing to assert a cl directly against ball ram for damage to the tractor and trailer its driver was operating at the time of the accident pursuant to a lease agreement that existed between the central and the actual owner of the co the court in rendering that decision relied on an indiana state court decision sturdy but i think our position is that the district court's reliance on their case was incorrect circumstances further indiana law is clear that when the express terms of an agreement address the party's rights as to standing those expressed terms should but here you say the express terms are implicit terms so i get that's how i took your argument well it's there it's we do what's in the common law unless there's expressed terms in the contract here there aren't any expressed terms in granting of subrogation rights to central under a certain limited expressly stated factual circumstance which is instances in which central wish to pursue claims for damage when it's using a canon that assumes there is no expression well i would respectfully submit to the court and i understand the court's concern certainly if the lease agreement said  central shell self insure and may pursue claims including but not limited to manufacturing warranty claims that may be a different situation here but the lease agreement here curves out and refers to only one specific factual scenario which is quite specific in outlining that central can pursue those claims manufacturing warranty claims product liability claims in essence those claims alone and only upon an express assignment granted to it by g o s lease co and we think that those expressed terms of the contract are controlling here and for the closer expressed terms that authorize something else and by negative inference preclude is correct that is side that is our prism negative inference note further that indiana law talks about the fact the subrogation is appropriate to prevent unjust enrichment by the suburbs or in this case of course if jealously sco had pursued ball ram directly there would be no unjust enrichment argument and so again that argument doesn't fly here in addition to that the court went on to find that an assignment document undated executed by mr calderon of jealously sco authorized this claim to proceed we've spent a considerable amount of time in our brief talking about the rather prior to that time although i did some consulting work for the company i had north already defined it at trial of course he reversed that testimony and said i'll actually i was wrong i meant to say that i was president back in april twenty fifty setting all that aside the more fundamental problem for central in this case is that there is no evidence that this assignment document was executed prior to the expiration of the statue limitations at best central had evidence that it was signed sometime in the summer of two thousand and fifteen if one assumes that's credible but nothing that specifically indicates that was signed prior to the expiration of the statue of limitations the third error made by the district court actually goes back to the beginning and we believe that the district court abused its discretion in refusing to enforce the original settlement agreement between the parties reached at mediation did do that i believe that now that we have a final decision i would believe it isn't how it works for summary judgment unless you're in a qualified immunity case or unless there's a twelve ninety to be certification all the denial of summary judgment is to say there's a genuine issue saying a genuine issue doesn't resolve the case did it ever resolve it after having said there was no to any issue of material fact well i think that the record was pretty clear that  e parties understood that all parties understood as different from a judicial ruling that we would we would review right i'm just mystified by that whole part of your argument was just like feeling some sort of inner like you tory basically it's an order saying we're going to keep going it's not over ok so now you're appealing the fact that they kept going but that's not something you can appeal you've got to appeal to something that happened when you went kept going denied it was he or she who is a judge as magistrate judge newman when judge newman found that there was a genuine issue of material fact was that generation material fact ever then resolved i will there's no further evidence on that at the bench trial if that's the court's question so they never resolved it so now you're appealing from the lack of resolving it that's confusing if you're confused now we're both confused ok and i don't mean to i don't mean for the court confused it strikes me early confuse by the by the argument just doesn't seem to be a coherent argument to me to say that you're appealing the determination that there was a genuine issue of fact normally in our circuit you can't ok i understand the court's concern my point being that the district court still urged on its ultimate ruling on the merits of central transports ability to maintain this claim in the first instance which is different from ok besides third issue i'm not saying i understand i'm separate you're expected to then argue the disputed fact at the trial and have a resolution of that and then that's the way you preserve the issue for appellate review and i understand the court's concern having said that i do believe that the record is pretty clear that the court did on its ultimate determinations of the issues relating to the lease and assignment as i've discussed earlier here those are different issues it's the third issue that i mean i'm not sure what the right answer is to your first two may please the court counsel my name is robert bookbinder here on behalf of the tele central transporter l l c i'll do i guess i will dispose of the argument relating to summary judgment on the mediation there was no testimony at the trial relating to  further dispositive testimony on what happened with the mediation and mediation agreement so i will then focus my time that that remains with respect to the lease and with respect to the argument on the assignment your honor the court found that central transport had standing to put pursuant to the lease agreement and the court declined to conclude anything with respect to standing pursuant to the assignment and i think that's an important distinction the court was focused on the rights whether they were common law practice and the practice and course of dealing and the testimony that was elicited trial as to what central transport rights were with respect to collecting its damages for the tractor trailer i think the court is aware that  all but about thirty thousand dollars the i can't recall the number but it looks like everyone agreed that the damages of about fifty two thousand dollars were stipulated it just came down to the tractor trailor damages about thirty thousand dollars and that's where the rub was because it had to do with ball rams contention that the lease did not have specific language in titling central transport to collect its damages there was no honor i think i would point out that with respect to the least central transporters the real party in interest and has a legal standing to pursue its tractor trailer damages i think that frames the issue for the court it's undisputed legal ending to raise an argument is not the same as making the argument right yes or ok you're arguing the legal standing is yes or thank you so your honor i guess under i would look at all rams argument that their contention thinking through this it appears to me that they what they were what they're saying is that following this accident central transport would have an obligation to keep paying on its lease obligations for this tractor trailer and it did that's the undisputed testimony  it had the obligation then to repair the unit or return it to its normal condition it had that obligation under the lease it's everywhere written in the lease and five or six provisions but it's ballrooms position that central transport but then didn't have the lease and for the damages the tractor trailer this makes no sense this is not how the lease operates in our world if we lease a car and someone puts a rock through the window i don't go to the leasing company and say you need to fix my car he says by negative implication that is what's trailers we don't have anybody who mean maintains tractor trailers we don't have any experts so there's a defect yes we want central transport to be the one to enforce that that right and have the ability to go after a manufacturer's claim if there's a defect we  that but the judge of the district court here looked at the common law looked at the story case and i would point out the ballrooms argument that there is some sort of exception in the story case yes there was an exception the hypothetical that was just hypothetically discussed had to do with the fact that possibly that if an insurance company steps in and pays the claim all then in that particular case that contractor would have lost his right to pursue subrogation claim against the utility company so with that in  mind that's not the exception that we're talking about here in this case your honor i would also point out that the assignment that was executed here the statute of limitations expired august twenty eighth two thousand and fifteen and they took some exception balrog took exception with mr calderon changing his testimony apparently i think if you read the transcript that if this happened during the direct examination and i think so your honor and there was no evidence to the contrary and the testimony that was actually the way the court ruled was that they were taking no position on the assignment and instead the court was relying upon the lease to give central transport the standing it it had to pursue it subrogation claim to collect the damages so that language is very specific to the court takes given the central transport had standing pursuant to the lease agreement the court declined to conclude anything with respect to standing pursuant to the assignment i think that's the way for the court to say yes there was some testimony that changed yes in fact there was some testimony about when the assignment was signed the testimony i think from mr calderon and his bouchard was the reason the assignment was presented in the first place was they call this belt and suspenders that's the way they phrased the tour in the trial but the point was they were trying to impress upon the ball ram to try to get this case out of a log jam we have all these rights we have the right to pursue this why are you not of the reading to allow us to get our tractor trailer damages so we've been down this road several times thank your honor i have had a chunk of time set forth relating to the mediation agreement but i do agree with the court's analysis and i'm not going to take any more the court's time less is one of the questions i am i'm wrapped up our very briefly i would take issue with mr buck finders characterization of the district court discussion of the assignment where the court is i cannot conclude one way or another when this document was executed but i find it to be valid  that seems to be internally inconsistent and not make any sense and critical of this case given that the lease agreement in our minds sets forth as i've discussed some very explicit provisions which would allow central transport to pursue damages none of which are a political here in this a little confusing but the judge says on this actual assignment issue is just a sentence or two true i would agree a most of the district court's opinion goes to the other part of what the law of indiana is right that is correct and again i think i've expressed my opinion with regard to what the law states and what the least document states in this case and i think that's spazzed of in our favor thank you thank you thank you counsel the case will be submitted will now take a brief recess