something that when a material misrepresentation this shona's is in the record the party one party to the contract isn't titled to a declaration to have the relief so as not to have to live with that contract that's separate and apart for the other aspects of the last two which were short a declaration as to a disclaimer as a matter of fact that judge acknowledge that sometimes and that a c disadvantage to answer that because that requires me to conceive of every possible rescission situation what what i can tell you is in this policy of insurance in the situation where we're talking about a policy of insurance i should clarify my answer with respect to policies of insurance they different than any other kind of contract because by their nature they're something that covers for a certain period of time for any claims that could modify my question is your position that all  recision claims as to insurance policies are just a ship i think so because i'm at a loss to find a situation where that concept doesn't apply perhaps where maybe a statute of limitations has expired right is because i have found out of a mistake i shouldn't be bound to have to live with this contract i evoked my right to say i've been issue from the beginning you lied to me i don't want to wait for another lawsuit to come i don't want to wait for more claims to come i want out of this contract with you because you didn't do right by me so therefore i don't want to stand up from that again just to be clear your client has is a contract of insurance that wa covering claims for work done during a particular period yes and even though that period was some years ago and the contract has been terminated you no longer insure these folks the your your point is there could be claims arising from latent defects in the work we don't know when those claims could surface in the future the contract of insurance remains as you put it a live contract exactly that's why i hesitate in during the general question because i'm more familiar with policies of insurance and i understand the ramifications and contingencies involved with them in this case there is a life controversy this insurance company has found out about a misrepresentation in the application process weed out through through discovery and very meritorious claim for research and it was error below most respectfully not to  decide the issue of research and simply put this insurance company says i don't care what other claims come along in the future i want out of this concept because i have a basis for it and correct and in fact with the policy was cancelled four months after it was issued for nonpayment so we're talking about a limited period of time yes agreed agreed there's actually what period of time just the form that should to be hung this week how much yeah it is a limited time but again because of the complications that happen as a matter of fact it doesn't even have to be a latent defect or a child that has a tolling period it could just be an accident the somebody has been put into sued yet it could have happened within that time period and they could have a basis to assert that a lawsuit later on this very claim came somewhat out of the woodwork long after much later after we knew of the property losses aspect of it i asked to just factual questions just certain things number one you are not maintaining on appeal that we should  review the decision about the coverage issue only the rescission issue i've read it because it's part of the record below and was part of the dismissal below i think your honour's would have jurisdiction to consider both of them i have briefed both of them well but then then that leads to the next question which is my understanding is that you or your client did not raise an issue about the coverage claim on  review by the district court of the report and recommendation in my wrong about the wreck know you are also that would that would ordinarily deprive us or lead to a finding that was waived but you did you agree that whether apart from the legal issue you agree that you did not raise that with the district court on review of the report and recommend yes your objection ok the second thing is i thought there was some ambiguity here and it may be relevant if we were to review the coverage claim  there was some suggestion somewhere in the briefing that you were actually funding the defense in this yes yes you are and then i thought there was also some indication that the defendant around plumbing had never put any kind of claim so i'm just confused about how that would have happened just undertook to do the defense of them it was it was submitted to the insurance company they took the coverage position and they've afforded a defense i i don't know i understood where that concept came about that they haven't done that i think as i understood the court is because they have defaulted in this case in the coverage case and not appear to challenge our position i think that's what the district judge meant but in the state court from the beginning it has defended orion and in the underlying case there was indeed a decision for the claimant who sued or wrongly and was able to prevail on the plaintiff's case pro millis case that is up on appeal and the insurance company has also paid for the appeal well it work on a continuous thing that isn't that an argument that you are now being harmed that there's i mean i don't did you make that argument ye coverage but but this is you said that our coverage on both which is waived because you didn't object to the r and r but this factual point it seems to me did you make this this point about the duty to defend as there's no contingency we're seeking rescission you want to escape the obligation to defend which is going on in the underlying case and was briefed and argued to the court in these in the the pleadings in this case the defense is just as important i mean as a matter of fact in some cases where you know they're not good claims they won't end up in them they be the defense ends up being the biggest part of the insurance companies obligation where should we look to find the representations about the ongoing  representation i think you look in the in the pleading in in my pleading my complaint in this case in the affidavit of the claim handler who says he's handling the underlying case he's the he's the guy who's afforded the defense in this case you think that was not disputed in the light well nobody showed up to dispute anything but you the complaint contains allegations about the harm that you're suffering as a result of defending so even if even if there were not evidence in the record as to we've spent x dollars on mr y lawyer to represent this you would still say at least until unless appeal is final you still are potentially on the hook for additional defense cause until i get a recession decision which is the reason for this lawsuit i'm trying to escape the obligation for defense  this even if we weren't paying for defense and then we could be liable to a lawsuit by the insured to say he incurred a million dollars in defense course now pay them because you have an obligation under my policy which isn't rescinded so it's just it's odd i think your only reference to the defense in your marriage briefing is page eighteen footnote seven  it is there an affirmative statement that this that this the district court was wrong because it failed to account for the immediate harm of the duty to defend to this lawsuit no one had ever at any point disputed that the lawsuit was going on but i go back to my my comment that i previously made the reason for this lawsuit is to avoid defense an with insured say for recision decision to pay the insurance or whether i'm actually paying the defense course or not paying the defense cost doesn't detract from that the obligation case or controversy if we don't necessarily should have i didn't realize that it was going to be in dispute my concept of rescission is you're seeking a declaration as to the known undisputed obligations if the policy exists so therefore as long as the policy exists and it's not rescinded i have these obligations there's a non going lawsuit and whether we're paying for the defense force or not paying that defense course there is a contract that you're forcing me to live up to or have the potential deliver gates some more about later on until i get my remedy in resurgence and i don't think you can use you say in the context of an insurance policy it isn't law because insurance policies are always life th could be somebody who comes out later on and said because they had a medical condition and they were in a coma for forty fifty years they now are able to assert a claim because they have a tolling during that time period there are grounds for  seeking rescission no matter what even if it's six years of gone and whatever there's no magic number in this context it is a it is a life contract it is a life time traverse city and i'm entitled to have rescission because the converse is wait another five or six years and then come back to me when there's another claim and then we could try to litigate a stale rescission case with how it be evidence now in this case i have some evidence that i was able to preserve an independent but that shouldn't be the law of the land that shouldn't be wait many many years to litigate case that you now know about as an insurance company because you've uncovered that you've been lied to and you want out of this contract but we're going to make you stay in that contract for another ten twenty years until somebody else comes along thank you