and although there are prior to supreme court cases that have the same caption in peace in federal court cases in state court that rule has now been interpreted you say you must file parent very child or parent lawsuit that they could use that in and match on that that before that was the theory that is not a theory that an average a lay person would know about that that would not need expert testimony in fact that's  and then in the medical malpractise case both sides had asked for witnesses talk about that nuance and what it meant and how that should be interpreted so it's not a simple issue that as the court below found an average layperson should understand it passage of over a year i mean is there anything in the record that they were pursuing some sort of a settlement or anything like that i mean here that's the statute of limitations running out what well what happen so we have a timeline here of what they thought everything was fine they thought they would be able to get it relates back and if you look at the testimony it wasn't until they were actually getting ready to finish their brief before the  sucks her own opinion same that's an absolute breach any reasonable attorney would know that well with respect to the this record if any reasonable tree would no such an obvious thing about this occur reasonable or seize actual knowledge and they don't have it here but it is our position is that that all doesn't apply because this case that the malpractise days was pending in jurisdiction has the rule concerning insurance policies they have a strong interest in the force that virginia has a strong interest in saying we're not going away insurance companies come back and say that you interpretation enforcement of the insurance  be in trouble but it was no intent to waive that position below because this one dollar question on this if i could a reasonable basis to believe so is your argument that the expert would have said that the mistake was not but i didn't i guess i didn't read you to be making that argument at any point in your briefs it just seemed like your priest acquiesced in the notion that this was wrong but then you made arguments to the effect that well there's captions and bridges reported cases that show that you know whether or not a reasonable with her many would believe that there was a mistake so that's a different question in my mind because you can make a mistake and have no idea that it was a mistake walking change you could be is our policy language and a couple simple facts this policy that we issued to paulson ace's the claims made in reported policy and in certain circumstances it can cover malpractise committed before the policy and so this is not something that expert evidence testimony is required and numerous cases in the district that support that notion what she did was look at these facts that we're going to talk about apply it to the language and second a lawsuit was filed after the statue of limitations had expired there's no dispute about that again to defend its move to this mess and the district of the secret in virginia dismissed with prejudice the second loss this all happened at the actual dismissal of the second lawsuit having just within weeks of when paulson a submit their application to c s c mr heard about this argued that how could a reasonable attorney know that that a mistake had been made i submit that whether he mr naves and paulson he's agreed with the court's ruling is really not the issue at least one trial court to trial courts that issue orders that there was a mistake whether it you know whether that's corrected on appeal whether the insurer believe that might be corrected on appeal there are a multitude of cases none of which were responded to by paulson and ace holding that you know simply because an insurer believes that boy we can get this correct on appeal or you know our client told us he isn't going to sue us really isn't the issue is after the time that they filed the application they knew that two trial courts have ruled they had committed in the state i guess from the company's perspective if those facts don't put a reasonable person on notice or reasonable of hernia notice of an error then we don't know what is essentially that language in our policy that says we're not going to cover you know mistakes that happen before this policy was issued is essentially written out of the policy there may be circumstances where there the error the alleged erudition might not be so clear you know where for example maybe attorney drafted a will and you know there is the client might have brought it to his attention that this you know you didn't write this correctly what i don't know where that would be something that would put a reasonable amount of attorney on notice of an error so there is a there's a sliding scale but this these facts are at the very end of the sliding scale i just don't know what else an attorney could be aware of that  the closest point but several cases talking about this set of circumstances where cases have been dismissed your client's rights have been adversely affected at that as of that time whether alternately it's corrected who knows but at the time that you submitted your application their rights have been adversely affected cases have been this mess and paulson is don't really respond to that in those cases in their brief and i can understand why because there's really no way  it you know this issue about expert testimony again that's not what the district court was doing she was not substituting her expert opinion it was you know based on a reasonable person no jury file otherwise this is just too clear but if you if there are cases the capital specialty did not have a special case to be exact same thing there was no expert testimony no argument that it was needed the court ruled as a matter of law based on these facts so there's precedent for this but i w occurrence policy where the insurer to get coverage first has to show that this case involved in occurrence or an accident or property damage once they've done that then it's the insurance company's burden to show maybe the exclusion of days the language that we're talking about is a threshold requirement in the ensuring agreement and it is absolutely undisputed again no dispute by paulson unaids at least not with legal authority no reasonable tourney could have believed this was an error let me ask you about the waiver sure defend what happened on november twenty first of twenty eleven when c i c realized  misled to believe that it was this era was committed during the policy period so one other issue here because because paulson is relies so heavily on this statute this statute says that in specific cases not all cases or an insurance company has coverage that says that only when they have a defense related to a breach of the policy by the insured they're supposed to send a reservation writes a letter to the claimant we didn't do that that submitted of course the clean we did have notice of her coverage defenses for more than a year before her case went to trial so if you know the purpose of the statute i'm assuming obviously is to let the claimant know that there's coverage defense and salute if she decides you know what maybe i don't want to litigate this med mal case maybe i want to see it till i find out if there's coverage she knew about it for a year didn't do anything so i submit that there's you know there's no prejudice and virginia courts when we were in the virginia crowe we only meant it to apply it to to i guess contract issues not the statute they didn't make that distinction and the virginia court and whether there is formal judicial a stockholder or not i don't know but i think th then you get to d c you say oh by the way there is one step that we like in virginia would like to apply here they are that statute does not apply if it's substantive you have to go through the choice of law analysis and contrary to that statute there's no requirement b c that you have to send our reservation rights to a claimant and so there is a conflict in those laws the court correct mr court correctly held that under that situation we must