first or appellant san francisco bart in reading the briefs again as one does in preparation for oral argument i was struck by the number of times that generally general reinsurance and as a practical matter that just doesn't work because bart's self insured retention was five hundred thousand dollars from sometime in the late eighty's i believe until two thousand and two and at the time that part settled the matter the earliest time that the agreed medical examiner had chosen well i shouldn't say chosen had suggested was a possibility for a latency period was hundred ninety eight so the parts self insured retention during this time was was the same five hundred thousand dollars it didn't matter generate was off the risk at some point but there was no reason to manipulate the process in any way and of course there's no seeking now which was the second estimate given by dr clayton hasn't been confirmed by anybody else so i fight it why fight it yeah because at this point  a worker's comp award after five years is final for all purposes and generally did not raise an issue regarding coverage until after the five years and had elapsed right but if you're but if you're covered for which that seventeen year in which that nine hundred ninety one date was established what was the one nine hundred ninety one date critical to the to the worker's comp determination it was it was critical in the sense that in any worker's comp proceeding you have to decide the fifteen years just seems to be arbitrary because because dr clayton put a put put a statement in there that it was fifteen years workers comp took it there was no reason for you to contest it that's credibility really didn't matter for anything at that worker's comp inquiry as long as it was some time when he was employed by bart that's correct but the worker's comp judge was nevertheless the workers comp board was nevertheless required to find a date of injury and once they found the date of injury they could they could a lot the liability to bart and what's interesting is that under labor code section fifty five hundred point five a year to bring a contribution action against other insurers that's the holding of the chartist case on which there were a lot well they found out about the award in april two thousand and eight the award was made in december happened they had eight full months to bring in another insurer and they wouldn't be collaterally bound you know that that's the holding of the of the charges case is that under that particular statutory provision and insure it or an employer is entitle to dispute the date of injury as long as the liability to the underlying claim that doesn't change it's only true if the date of amount and the date well the date of injury was a predicate to their finding of liability but that is judged by b just suggested the date of injury could have been anywhere within a certain range of years and you would still be found liable right  and at that point whatever ensure was liable was on the risk that point was free under section fifty five hundred point five easy to bring an action against any other insurer but the issue here is was it a requirement sense of saying that if that the injury occurred during parts of excuse me during generates coverage period yes the question we're deciding here today is it your view that the board  made the same ruling whether or not the body is whether or not general reinsurance is required to cover your liability could the deputy be have made that precise determination possibly your honor excess insurers and self insured have to do with provisions of the policy that have nothing to do with coverage of the injured worker when we're talking about coverage of the injured worker then i think the w c a b does have jurisdiction about coverage of the injured worker we're talking about the obligation of the excess insurer to the employee who has become obligated to the  worker so tell me your strongest case to support the proposition that you see a could make the determination that an excess insurance carrier is obligated to bring can bring on its own motion yes yes under i believe it's labor code thirty seven zero two you know under what circumstances have they done that and it sounds like the way you phrased it it's discretionary with them anyway yeah i don't believe it's been terrific if they had done that here and had been terrific if they brought all of your excess insurers and lay them all out and said let's have that it's clear one of you somebody here is liable for this well that's right and that's the point  is that under fifty five hundred point five eight that could have happened any time in the year after the award any time you don't generally which was that was the party on the on the hook at that point had a full well eight months in a way in which to open a proceeding under fifty five hundred twenty five i think we've got to be careful here about trying to import the standards of civil litigation into notion was that it could be handled by injured employees on their own so that there is a degree of in formality here and counsel i think i have appreciate your candor on that point i think you're exactly right which which you know leads me to be somewhat hesitant to say there's four therefore there's collateral estoppel here on a point that wasn't at issue that wasn't of concern either to mr khosla or to you at that point you were covered by executive rizk case points out they're bound under principles closer to indemnity and the point is that they first of all the they don't they don't raise a lack of notice defense but even if they had the lack of noticed offense under fifty five hundred point five either they had an opportunity for eight months to readjust that you know it's if the the what would you have presented to them after the after the the board proceeding long before the expiration of any possible period under fifty five hundred point five during which they could have done it i think the point of it is that i think that putting this burden on bart to go out and and fight with  excess insurer five years after the excess insurer has accepted the risk and has paid on the risk is antithetical to the way the the a worker's compensation scheme is set up in this state it is you know it is should not be bart's obligation to go out there and make these if fight with the excess ensure council this is a purely hypothetical if we were to rule against  see that i have less than two minutes left i'd like to reserve for rebutt good morning your honor sir steven sure for defendant general reinsurance corporation i think it's useful to start with the there are a bunch of references in the and especially the reply brief to adjudications are determinations of date of injury by the worker's comp judge but if you look at the actual order approving the compromise and release there is no date of injury determination and it was a pretty good finding that the judge had to make correct well i don't know the  judge all the judge had to do under the statute in the regulations was determined that it was an adequate settlement for the work so there i the this step fifty five fifty five zero zero five of the labor code and the regulation in title eight it's ten eight eight to both say the judge to determine if the settlement is adequate but there's no requirement as far as i can see that the judge has to determine that there was actually the conditions of compensation exists and i you can see that if there were a date of injury finding it would be binding on you know your honor and we did litigate that was the issue we litigated based on the sumption that there was even if there had been a finding we contend it would not be binding on us but i think it's important to recognize first of all especially given the executive risk argument which is based upon the assumption of a judgment that in this case there's no judgment they don't have judgments in the worker's comp system but there's not even a finding of fact and there's not a  statutory obligation of an employer to the injured worker right there i'm just there doesn't have to be and any kind of adjudication sure but you have to you have to make a determination that this fell within your policy or policy was fairly was fairly old in the big scheme of things in december twenty first they provided no information about this lawsuit other than it was in our policy period and that was i believe that exhibit ok you or something like that would have in december of two thousand and eight so you are now  or two thousand and seven two thousand and seven december that was the first notice was a week after the settlement it was december twenty first two thousand settlement but we didn't get any us any backup documents at all what did you so when did you start requesting to back up documents sometime after the beginning of the year so it sometimes in two thousand and eight sometime in two thousand and eight ok and me in march of two thousand and eight they provided some backup documents including some other reports from dr kate nine according to your opponent over here you've had all the information that you needed you had the decision of the all of the information from the experts and you waited another three or four years you started paid and then you waited another three or four years before you disclaim coverage in the meantime there their time to go elsewhere had lapsed according to the but there's no they don't need to go back and set aside their determination in fact i have no right to know basis for setting aside a determination the issues of between them and their access insurers are outside the jurisdiction of the w c b they they're not bound other than their own stipulation of the date of injury but the point is you had notice an opportunity to contest this or to be heard it seems like april two thousand and nine  waited another three years to do anything that we weren't aware of the you know the information was in the documents that had been submitted but i had always what you want to wear for what the that the fact that the employee had continued to work unt two thousand and five and had only been diagnosed in two thousand and six and the date of injury determination was based upon a latency determination of fifteen years based on the to his sentence supplemental report by d date of injury it wasn't until at some point somebody by mistake apparently in two thousand and eleven or twelve said the date of injury was two thousand and six that somebody said took a closer look and raised the issue so the the other thing that i think is important is if you want to go over the notice issues a little bit more carefully is that in march that you weren't raising the no challenge i wouldn't and we're not raising a defense we're not denying that there's we are not liable on a covered claim because they gave us late notice but they are arguing that we have some kind of obligation to set aside the w c a b determination there as i pointed out i don't think there was a determination to set aside but we are only responding to these these issues because they say that we we had an obligation to do something something we did not i i was just wanted to point out that in april when we finally got the order that they say we should have tried to set aside we still did not have the the minutes of the hearing which is the only place where the workers compensation judge refers to the date of injury we got that in october of two thousand and eight so the twenty day period that they say we had to set aside the order had lapsed by the time we found out the judge had made any statements at all about a date of injury so that leaves him solely with this five year argument right you did but that would have been that still would have been two thousand eight when the one year period would have lapsed is that correct there was a twenty day period for their art their arguing under fifty nine o three it's a new argument on appeal they didn't make it below but they're arguing  fifty nine to three that we had twenty days beginning on april fourth two thousand and eight to seek reconsideration of the order approving the compromise and release there's two problems with that that that is that if that's applicable soley to actual workers comp liability insurers which are insurers that make themselves directly in primarily liable to injured workers that that issue w specifically addressed in the millman case the city of contra costa case in the courts it doesn't apply to access and sure does not apply to access insurers so that section doesn't apply to us at all not so when i ask opposing large penalties assessed against a self insured employer they wanted to have a settlement conference they wanted to come compel us to attend a settlement conference and the court held that for that purpose making us attend the settlement conference they could join us but it wasn't joined or to determine our liability under the policy to them in fact we did litigate the coverage issue in that case it was litigated in the superior court and it was affirmed on appeal so there is a case called st jude versus general reinsurance corporation and they litigator the actual coverage issues of liability for penalties in the general jurisdiction court the superior court  and i think the millman case makes that clear it comments on the st jude case and it says this case this case shows that we could be joined but it we cannot be joined for purposes of determining a liability first of all we cannot be held liable to an injured worker and we cannot be joined for purposes of determining our liability under a contract because that excess contract doesn't w c a bead has no jurisdiction  the default day of injury the default employer who is liable is the employer at the time of the last exposure to the conditions that cause the injury or the last hazardous conditions under fifty five hundred point five so the only exception to that would have been at the date of retirement two thousand and five when bart did have a four million dollar retention the only exception to that is if the parties can prove that there was a period of exclusive injurious exposure and to do that you have to prove not just an average latency period but  to to decide that it was no longer it was not liable and that it would in fact it was actually entitled to a repayment of of all of all monies that it previously paid so how long did you have what's what there's no fixed amount  those are two separate issues we did dismiss or you are counter claim you could have come in a couple of years from now and you could have paid paid out through let's say two thousand and twenty and then decide in two thousand twenty you didn't really owe the money and seek all the back pay well as as long as as new claims for reimbursement are being made there's always going to be an issue about whether the policy applies as long as they space they submit for the life of the of the injured worker a new request for reimbursement the reason i'm asking counsel is is i understand if you were paying if  were if you were paying through two thousand and twenty and discovered in two thousand that that you probably really weren't liable i can understand why you might go go back at least a couple of years to get that money back but at that point bart can't go against anybody else so are are you are you stopped under some doctrine from from denying liability if you've paid out through the period head against which bart would have an opportunity to seek reimbursement from some other company we could be we could be i can see they could make a separate argument that we can't it's too late to go back and seek reimbursement of past payments if they document her only relied but as a matter of law it appears that there you did doctrine of  insurer i notice in fact they already put midwest on notice that doesn't but perhaps not for passed over for past payments they put they put midwest i notice already so midwest as i noticed they had the same right to ask for additional information as we did so they said immediately that we're going to close or file because it doesn't look like this will ever really reach our four million dollar retention is  he's still living yes and it's as we point out it's probably unlikely that they'll ever given name out they claimed in their complaint it's doesn't seem too likely they'll ever reach four million dollars in this particular case freeman i was wrong about the dates of the award was made in december two thousand and seven you look at the district court's judgment they'll say that they had the information that he worked for barker until two thousand  and i think was april possibly may even mr troyer says that by december excuse me october two thousand and eight they had the actual decision in hand which left them still two months under fifty five hundred point five given this is the w c j the workers compensation judge given the complexity of the issues here and i have independently reviewed the medical record in this file to determine whether the settlement is adequate and whether or not the date of and those minutes would have been provided to the insurance company when i believe by april two thousand and by april two thousand and eight if if not perhaps in october two thousand and eight but in any event i don't think that the neutrals company is going to start paying out tens of thousands of dollars on that without some sort of notion of what the injury date whether the injury date fell within their or their on period risks so with what they have on this kind of maneuvering presents a grave issue a grave danger to the simplicity and ease with which workers comp workers comp proceedings are settled if an insurer gets to sit back and say ok you go fight it out with the employer with your employee and once that's done you've got to come in and litigate with us then they're going to throw a real spanner in the do with coverage at all with with the liability to the insured employee i would say that under labor code thirty two hundred and fifty five thousand one five thousand one says it's the  employer in a judgment is made and if it's over a certain amount then that's the first time the excess insurers hear from anybody usually i you know i think in this case that there was a mistake in the  alert to midwest by the way when he says the midwest is on arm on notice that we were given notice back in two thousand and seven they're not they're there we're well past the five years on that one as well but in fact be in excess insure