summary judgment for amtrak's insurers thus precluding amtrak from seeking any insurance coverage for the sandy related damage to the hudson and east river tunnels above and beyond the one hundred twenty five million dollars flood sub limi even assuming that the state sandy storm surge is properly treated as flood within the meaning of alice's amtrak bargain for full coverage above and beyond the sub limit the flood supplement for and suing losses even if predominantly caused by flood and the district court we submit lacked any legal basis for ruling that the chloride induced corrosion of the steel in the tunnel which didn't begin until days after the thing that puzzled me a little bit is the ensuing moss question one that in your view ordinarily is or should be put to a jury such that the issue here is really a question of summary primary submission is that the judge made a legal holding that is erroneous that somehow because of this corrosion was an injust request of you to foreseeable or natural result or in some other way of the w rn at the absence of an of an independent cause somehow the policy new york law requires that we not be able to invoke the ensuing loss clause there also is some language in the opinion which we view is different than proximate cause and sue and i don't think they mean the same thing merely elements of ensuing law sure on or are that it has to be come later in time than the excluded or in this case the sub limited loss which is flood that seems like a harder argument for you to win on frankly  if what you're saying is it just has to come after first of all it seems to me inconsistent with the new yorker decision and my attack and secondly as a sort of matter  interpretation it seems to make undermine the any exclusion to a kind of absolute degree most losses are going to that are caused by something happen after the something happens as a cause and then there's an effect that comes after a definition by definition so the the in if in suing just means later in time i have trouble getting that as a policy matter if i had decided in the first instance and i'm not sure i do because i think the new york  already has decided two points obviously rather than one incident play tech point a minute but i do think there's a difference between something that happens when the event occurs which is the flood damage that happens when water rushes and moves debris around maybe if it causes structures to fall down immediately when the waters there they only begin when there's air there which is certainly the case with respect to new water hurt anything in its own right other than a rush of water that as you said my flush out loose stuff in the tunnels that belongs to m track so this never recovered again because now it's very down to the river or to the border doesn't really hurt much of anything if you get up really fast but if it's a flood you know most people i think you know i think why wouldn't i want to come into my apartment the answer is because would ruin everything that's there because all my books would be were alarmed and all my wooden furniture would become the and warped and maybe some of the metal things would rust but you're saying none of that is actually flood damage i think much of it is flood damage and water presence of water immediately ruins many things that your i phone when you drop it in the bathtub is ruined instantly papers may be ruined instantly photographs many things in this case there was a massive amount of damage simply by the fact that the tunnels couldn't be used for a week there's a business interruption loss there were things moved around by the moving of water flood damage is in that kind is irrespective of the fact that there was chloride in the water if this had been a flood caused by fresh water coming down river rather than salt water coming up river the same volume of water rushing into these tunnels he would have had the same flood damage and were not under our theory in any way negating the flood some limit as applied to the things which are an inherent in flood damage of that kind we're saying when there's a subsequent chemical reaction that begins because there happened to be a large amount of chloride and this chemical reaction by the way is continuing in those tunnels today or just to be sure that the chloride is just because it was seawater yes sure that the that that that's what happened as opposed some other kind of mold that would have happened if there were fresh water wash right but chloride as to steel when you combine it with oxygen and he in humid conditions causes a continuing reaction which goes on but that is the same reason why your car if you have it up in snow country last about half as long as it does in florida there may be more water in florida but there's a lot less salt on the road i don't understand how you can separate out the chloride damage from any from flood damage that occurs by salt water i mean it it's as judge lynch was saying you have the initial breakage of items by the force of the water coming in but there's no way in which  the corrosion that you're describing could have been avoided in any way it's part and parcel of the fact that it was salt water that affected the flood well your honor with the evidence we're prepared to show a trial is that the as long as the water had been left in the tunnel of this corrosion would never have occurred so it only starts after the oxygen is reintroduced into the into the tunnels so there is the temporal delay which is very different from the other kinds of flood damage at issue and up to go back to the issue of if the water at the main you know you're on of the evidence is that a rust that i'd buy a metal girder sitting in seawater will never rust until the oxygen is a gets to it that's what we're prepared to show there is an fact a factual dispute about that but as the district court recognized it was obligated to take our view of the facts and so in the just a way that makes a difference i mean the water comes the water goes and you know there is no obligation to keep the water in the tunnel they don't accept his idea that any natural expected result is disqualified as an insulin loss they simply rely on this other idea that there has to be some new independent cause like it's separate or right but the word p tech your honor it's important understand in insurance law apparel is both a causative agent and the damage so if you look at the policy they have excluded perils of radioactive contamination not radioactivity mechanical breakdown all of these things are both and the word peril in the plate tec case we quoting that the treatise in the bill that one sentence is essentially saying that it has to be something different in kind and different in time that's what you said in the rapid park case which you sat on your honor and we have a different incident time and a different in kind kind of damage it affects different property in the tunnels than the property that was hurt by the water it is the language itself even if the peril of flood or the way is the predominant cause of loss of damage and the ensuing loss or damage not the want is excluded here and should not be subject to any supplements a somehow if they would left if the water had left chemicals behind the cause of flame as opposed to a slow burning corrosion somehow that should make a difference is simply inconsistent with the language of the clause there is not a hint here of a requirement of some new immediate accidental cause the gist of what the district court relied on and that the key message apply tech is the language of the clause is critical that there is no preexisting new york law requirement that is super imposed on these clause this is not like an indenture where the courts sort of read a fixed meaning into certain kinds of concepts this is your term of hard argument but i find it hard to follow that because every case that interprets language then gets in crusted onto the language so to the extent that a court and maybe your argument i now understand i understand the argument that you're making that i take doesn't actually do this but if if if we read playtex as saying here's what an ensuing moss is then the next insurance policy to come along that uses the term ensuing laws has to be interpreted in accord with that precedent well you know you're right i think it's important to stand this is an extraordinarily broad suing last clause very different from the from the run of the mill in suing lost close the one in play tech for example said we don't cover why no damage to your house but we do cover fire theft and explosions resulting from water damage in your house and so that they had a specific requirement of some new and independent cause and there are many such examples out there in the case law we bargained for was an extraordinarily broad thing this says any form of loss or damage predominantly caused by the flood you know if they thought that they were covering things like mold and corrosion caused by seawater with that kind of a broad clause they should have had some exclusion for there certainly are policies that i have seen and have come for me in my judicial capacity that have corrosion exclusions that then become the subject of other sorts of interesting litigation i take it this one does not know your honor there are many excluded perils in these policies radioactive for example is the one i mentioned before but corrosion chloride damage none of that is excluded here as a separately excluded peril so we meet the elements of playtex we have but it's subsequent in time it's a different kind of harm and it is not otherwise excluded under the policy it's going to go back to my jury question or not argument because it does sound to me as if the consequence of  argument is that at least unless the insurers are contending or contesting the scientific facts they are i think you are ok so that would be a jury question and it would be a jury question whether you were chemical theory is correct as to how the road in actually operates but then it seems to me still the jury on your theory would have to be instructed that if you were right on those facts then it is as a matter of law and suing moss that's our position here and i think what i think that is the correct position under the governing law of new york which says look at the policy under the language of the policy and under the evidence that we submitted about what happened here if i might just take a minute to talk about that the i c c i'm going to give you that in these there are a lot of more time for us to talk about the sequel a year and so did the others another really i think serious error that the district court made here was in ruling that we don't even have potential coverage for the replacement of the undamage portions of the bench walls and that the track bed to comply with the fire code and with the americans with disabilities act if and when that anticipated requirement comes to fruition we have happened here is they move for summary judgment we said we anticipate having these problems and these obligations and judge rake of said apparently because there haven't yet been some obligation imposed on us we somehow lose coverage permanently let's let's be you know just sort of trying to figure that out suppose you are right what is that do you think is appropriate from the court because i don't think your co saying that the intruders are entitle now to the dismissal of this part of the case to not have it hanging over them but without prejudice to your filing a new action as and when some regulator tells you you have to do something and saying that this case should go forward in a kind of limbo really waiting for that to happen  on that clause because as of now it sounds to me like you just conceded that you are not today and title to a declaratory judgment that they have to pay something or they have to pay for the real pacifically for the reconstruction of the entire well i think the prospect that we're going to have to do that is sufficiently clear out of the aviation and of the other regulations apply that you could come to that conclusion but i'm not asking you to do that this morning i mean it's and again  question of what the law is and what the interpretation of the contract is the insurers might be taking the position that the d i c c clause doesn't come into play until some regulator tells you what you must do it seems to me there's also a possible argument that there are so many arguments here i'm not sure exactly which ones you made forgive me the there's also a possible argument that well at least in some cases on some states of some records you would be able to say wait we have to wait for somebody to come and tell us that there is something that we obviously are required to do as a matter last to be right i think we think that has to be right but whether this is that case is a more but i think at this point we didn't ask for anybody to rule it at this sta e we were finishing up the sky every getting the case put together we were we put in evidence that show our engineers anticipate having to put the lower bench malls in and the flat track bed in and that is the plan that they are developing and we'll soon be submitting for funding it want to do was do the work when they get it well do you want to do the work over is the idea that you're going to submit plans to do the work and then some regulator is going to tell you that's not good enough because you have to do more or something like the way this works the other is the federal railroad administration is the administrator of the federal grants that will pay every dime of this work and they have extraordinary detailed review of all the plans and the idea that they would allow us to only put the floor wells up to a certain point and then they'd have a barrier or people couldn't get off the bench walls and get out of the tunnel is expected i submit quite fanciful but at that point there will be a whole discussion of all of this in great detail with the our regulators and we're quite confident the end of the day between the a t a i and the fire code that that's what's going to be required and that in the end of the day we will have this but it at this would you want is for us to say the summary judgment is reversed because it is premature to conclude that they when as a matter of law period full stop or at most of them say this issue could really emerge at some future stage in the case what we're dealing with an order here this is this clause does not provide coverage for the portions of the bench wells and truck bed not damaged by superstorm sandy that is a problem for us because it is a holding that will be binding because it is with for a while why did you bring the lawsuit before you had to complaint this issue doesn't show up in the complaint it shows up in the middle of the litigation in this and then to subpoena additional all of the complaint says is we have a lot of reasons why we think we're not stuck with one hundred twenty five million dollars floodlit that's what it says and then this kind of emerges in the middle of a litigation and you know we we would have presumably by the time this case got to trial been able to make additional evidence arguments about how much we were going to have to be required to live with these things but at this you know i mean if i understand and we'll have to work out your i understand your argument we'll have to work all this out at some point but as a practical matter i think what you're hearing is on lot of concern about how this issue should be technically handled but also a lot of agreement with you that it's hard to see how it can be said as a matter of law until regulators act at least that you have to loosen on this on this clause and that basis perhaps are leaving that haven't got that far  one of the things i was sensing in the questions is a recognition that this is an issue that cuts both ways that if you were a homeowner and have purchased flood insurance you would think that you had insurance that would cover when your house was in dated with salt water the corrosion that occurred as a consequence of the salt water where it wasn't supposed to be this is flood damage and that's not what the ensuing loss provision is designed to cover the ensuing loss provision provides that even though this loss may be excluded in some policies or in this policy there is actually coverage for flood but it's limited at one hundred twenty five million if as a consequence of that excluded or supplemented peril another peril arises and that peril causes damage you're going to get the benefit of that and of course the the classic example is the san francisco earthquake where if you had an earthquake exclusion but you had fire insurance after the earthquake with all the gas lines broken there were lots and lots of fires and if your house burned insured wasn't supposed to be able to get off the hook by saying yeah but that fire is the consequence of earthquakes the homeowner rightly said but i have fire insurance and that's the well it doesn't have to be an intervening cause they're certainly related play tech describes it in very similar terms for honor it doesn't have to be an intervening cause because again it can be certainly as a causal relationship the fires as foreseeable  corruption that occurred here yes exactly as if and if it was then why isn't it still but but the same san francisco fire case the fire was treated as and soon a covered and soon lost by when the corrosion here tree because the fire is the separate peril that is is is purchased that insurance is purchased here the corrosion is the flood was as and this was what the district this policy is not doesn't use the words that raise an entry of oxygen is not another peril the entry of oxygen is not another parent no one the parable that's right here on her entry of i would be the touch tone of ensuing cause another peril another yes it why shouldn't a policy of said well because your honor that in plate tec the court recognise that in suing lost provisions used various formulations but they have a similar meaning in their construed similarly in fact quite tech itself didn't use the phrase in suing moss at all but the court recognised it as me suing last revision and so that the word in suing loss has been construed as your honor indicated that the courts have looked at this and over the years construed in the way playtex cites to treatise it cites to in an article it cites to decisions of other chords that indicate that new york laws is consistent with that and in suing lost provisions are construed in a way to ensure that the exception does not swallow the rule and in this instance amtrak's argument the exception would swallow the rule and again i think the suggestion that someone who had purchased flood insurance would be told by an insurance company i'm sorry you only have flood insurance you don't have chloride attack insurance therefore you're not covered would i think the insurance company would not only be laughed out we would be sanctioned for having acted in bad faith roshan's surance apparel that you can insure against well in this particular policy that isn't used the word corrosion but there is a strokes but basically this is accident insurance and that's not kind of an incident that's just what happens in the world that's right here on earth that this corrosion is the result of an accident in the form of a flood  this salt is there this is not the the theory of of coverage is that this is not gradual corrosion there's a gradual deterioration there this is the fortuitous event of the flood deposit salt where it's not supposed to be would not naturally occur and it's the flood that does that and the suggestion somehow that this they're separate because the de watering acts as sort of that the cutting off  read that immediately in my mind that suggested that if you have a house in your first floor is inundated as well as your basement and the first or water recedes naturally would you have to pump the water out of the basement you may have coverage for the corrosion on the first floor but not the bottom basement because you had to pump the water out for that and that doesn't make any sense insurance policies are supposed to be construed in a fashion that makes sense and so under the principles that ar in play tac where you have to construe it in a way that the exception doesn't swallow the rule that you construe it in a way that although plate tech doesn't use exactly the phrase separate and independent they use those concepts they note that cases disallow coverage for ensuing loss directly related to the original excluded risk and certainly corrosion in this case is directly related to the flood they use the phrase wholly separate inciting another case that's page nine four nine six ninety four and then they cite a treatise that ensuing loss provisions quote provide coverage when as a result of an executed peril or in this case a limited peril a covered peril arises and causes damage so all of those same concepts of separate and independent are evident in new york law as recent as last year in the plate tec decision so the district court application of that law was correct if i could just very briefly address the d i c c and i think what's left unsaid it all is the this argument that the d i c c provides separate coverage above and beyond the limits of flood loss is an argument that was not made in the district court it was not addressed to ruled on in the district court and it has been way in the thing he said he didn't raise the d c c thing that's part of the summary judgment motion i'm speaking about something different your honor that the theory that they have which they really haven't briefed that's not been briefed here in this court it wasn't briefed in the district court they have a theory that even if flood is capped at one hundred twenty five and they're paid out the maximum of their primary coverage they paid a separate premium in effect or a part of the premium was calculated on the grounds that the d i c c coverage is different because that's not lost that's caused by floods and all that's lost that is caused by the regulators coming in and saying you have to fix things that the flood didn't damage and so on that theory this policy has an absolute exclusion for terrorism you just get no coverage for any loss as a consequence of terrorism on that theory if there was a terrorist attack they'd say well we don't give the last any coverage for terrorism but we have to rebuild what was destroyed by the terrorist attack and we get one hundred twenty five million dollars to do so because f r a has told us that we have to rebuild in a certain way there is coverage for flood damage but it's covered up to up to  hundred twenty five million the i c c is building on the predicate of the flood damage because and again not subject your your honor this issue hasn't been briefed because it wasn't argued below it wasn't ruled on below and then you are not here saying that we should make some kind of ruling what this is not that this is subject to the flood cap you're saying this issue is not in this case at this moment and doesn't it therefore follow that mr smith is effectively right the judge drake of shouldn't have been ruling on this one way or the other that whether the d i c c clause applies to anything they want to do is something that will have to be a in the future if as and when they have a factual predicate for making such a claim no your honor and i wanted to point the court to page s a five which is page two of the district court's june twenty fourth or the june twenty fourth order is really two separate orders if it's at the back of the special so page two it says first addressing this is addressing that the excess insurers motion to dismiss as to them they said first the flood definition covers this this was flood second ensuing loss doesn't extend it because the court corrosion is is part of the flood and third there's only one occurred and so there's only one hundred twenty five and accordingly the court grants the defendant's motion for summary judgment and dismisses from the action the excess insurers that's because we had said we have no obligation in this they didn't make that argument and therefore judge ray cough dismissed the excess insurers before proceeding in the next paragraph to address that then still live issue as to the primary insurers of the because the the the primaries that they still hadn't articulated all of their forms of damage they have certainly some damage that they had already known they had do watering they removal they had electrical equipment that had you know been ruined by the water but there was some question about even up to the hundred twenty five would they be entitled to one hundred twenty five million starts with in the event of the last order damage under this policy so it has to be covered loss in order to and then you can get up to one hundred twenty five because they did not raise this in fact when even when amtrak came back and made a motion to reconsider and said well wait wait wait you acted too early in dismissing the excess insurers because we have another theory whereby they might be liable they said when they didn't say the i c c and that motion they said when we have another theory where there might be liable and judge ray coffin put no ten of his opinion this is a page essay thirty foot no ten said no no this is too late this is too late the excess insurers made explicit that if they won on three things flood and suing lost occurrence they were out and you didn't say anything to the contrary it's too late to come back now with additional theories of how you reach the excess insurers and he refused that motion for reconsideration on that point but even even at that point they didn't assert a separate insurance policy or said separate insurance against the c c type losses were just a part of the limitation whatever cover so if you had firefighters up to six hundred seventy five but you couldn't get more than one twenty five of that six seventy five for the i c c right so you're saying that that latter question is the one that is waived waived they did not waive in your view the argument coverage i would just say that in their complaint they actually say and we are entitled to cover we are entitled to destroy and rebuild our seawalls from portal the portal even though it's just this part of the middle that was that was damage all of that we're entitled to and so on to given that they had sued us for that we were two weeks from trial it was incumbent on them to come forward evidence that the law would actually require that and there is nothing they don't even cite they certainly don't quote but they don't even cite to the p f n f p a one thirty because it doesn't say that you have to destroy something that isn't here but if it's even if you're two weeks away from trial and even if they can't win this then surely it's a fact that if other damage turns up at some future point they're not precluded from seeking coverage but i think they are as to the excess insurers because we w well you know you better go speak from there because no one in the audience will hear you the tape that you're eventually going to want to consult about the oral arguments you need to look at i'm sorry you are i realize you have difficulty getting there but  so i apologize i apologize for that but that's ok just yet in order to have the transcript of the recording of this on the website you have to write in and i think that my colleague has articulated almost everything that i want to point it will not repeat i would just say a few things regarding number one the actual inundation here is to less than a third of the length of these bench rules and rail so the the only way that we could get to d i c c is if this court reverses the findings of the district court below that this is flood and that the ensuing loss doesn't apply in that instance and i won't go into the waiver argument on the so called stacking issue before i think the court has intuited our position with respect to the d c c in and of itself it says again that's assuming that the judge's ruling that the flood supplement caps are all damage everything but let's indulge the assumption that says in the event of loss or damage under this policy that causes the enforcement i think we've heard a concession today that they have nothing to show from f r a or any entity of a governmental nature that would apply to the damaged portion of what had just their obligations to comply with the americans with disabilities those obligations as a matter of law have been ruled upon by judge recall for appropriately because wall and lower height it makes it impossible for someone walking disability to get through that's the condition that it may it probably isn't now having but if it if there an alteration to damaged property then i can understand how the e d m might run an art of a facility of it if it's not part of a facility in the context of i'm sorry it depends upon what t be there is damage to a part of the facility the facility being the tunnel and that could be repaired and to the extent but for the cap on the portion of the policy that caps their damages are ready and they've been paid for that's possible but what we're saying is that the vast majority of what amtrak is seeking something like something akin to six hundred eighty nine million dollars as the time trial though the numbers were changing a morphing all the time they were there they have a request for direct fixation which they never did before and the record will show even after which is in the head of their would be nice their expert said if they could get direct fixation and they said well the a d a s someday somehow may be enforced against us but that's not what this policy requires what you're  arguing is and why the split because of that action no they had their opportunity judge relate brought this lawsuit that's let's take away the issue wait but not waiver a judge i'm not arguing waiver on that they they they raised the i c c per se as opposed to stacking which is a separate issue we say waiver as to the stacking we don't say that much that well they say that they could the limits twice and the paul ince of insurance they're  there's a limitation of under twenty five million dollars that is in a separate clause paragraph eight coverage extension so yes there's the demolition and increased cost of construction why should we rule that the hundred twenty five million dollars limitation covers both the herald and the extension because that's how the policy is written if we look at the totality of the policy and the limits on the front page that one hundred and twenty five million as the district in our view correctly rule applies across the board expressly in our brief in the district court on the d i c c issue that's on the d i c c issue but this is the question of whether that is separate coverage in effect with a separate limit or whether it is subject it is putting aside the question of whether the i c c clause covers the thing that you the problem you have there been saying there's a separate issue which is whether the dia i c c is still subject to the is simply that we had an obligation not only to make that argument in the d i c c brief but in the simultaneously filed opposition to the flood brief that somehow by not cross referencing these two motions which were being briefed in parallel briefed on the same schedule argued on the same schedule decided in the same order that somehow by not telling judge rake off in our flood brief that we had additional argument over here on the d i c c side for getting out from under the sub limit we somehow waived was issue has a separate application to them or something like that when they say they said we when we established three things and you didn't say oh no no because the thing in the other brief actually applies to you as well they said that there were briefs about why we were wrong about the flood supplement and why we're wrong about the ensuing loss clause and there were briefs about why we're wrong about the d d i c c clause which is the say on whether or not it is there is evidence of being triggered the only reference in the briefing to whether or not that these are stacked supplements or the same supplement was in our brief and we told judge rake off and that you is quoted on page twenty of the reply brief assuming argue end of the defense defendants were to prevail on both the flood supplement defense and the ensuing lost offense defendants policies still do not contain any anti stacking language or other provision which would bar the application of multiple supplements so we took that position we preserve that position judge rakoff never addressed that argument it has not been decided contrary to what you were told the idea that somehow you would affirm on the basis of that in fact there's no separate sublimate is just wrong because it's just it was never really briefed in the district court it was never really briefed here but it was not waived i mean we told the judge at the time in the brief where that was the relevant issue not one for us to have addressed it in the other brief filed the same day would have been odd how do we get to the property and the policy is silent on the question of whether or not that coverage is also subject to other supplements that it's the insurers who moves the that they have an obligation as i'm sure it's over you would you would you take that position as to each of the coverage extensions limited that defense costs are also separate fire brigade charges last adjustment expenses debris removal those consequential loss control and damage merchandising there are a bunch of things that appear under coverage extensions which i wouldn't see i will ultimately the question i think is the way this is going to turn out is who has an obligation to make that clear and i think it is a general matter of insurance laws the insurance company if they want to say this isn't really a coverage extension it's simply a different way to get to one hundred twenty five sublimity insur if i could also add the idea the judge rake off was correct i don't follow that the consequence of the flood is money that has to be spent to fix up the tunnel including money that has to be fixed up because law requires an extension into the undamaged portions all part of the proximate cause and that's one hundred twenty five million dollars of coverage that's available for all aspects to this and i don't see any separate from vision that provides a different limit for the extension of coverage it's all part of the same thing if you want to argue that there is no limit the sky is the limit on the extensions you do have a more logical argument you can say that there's of coverage that we can invoke even when the floods has been as to the damage property the flood supplement has been exhausted and i think that there is no clear provision precluding that and it's the question then of insurance law who has a right  an obligation to make that clear and i think if and when we had opportunity to fully brief this issue i think it would then there would be ample precedent showing that it's in this context where the insurance company has left that unstated they shouldn't be able to get out importantly your honor the excess insurers fully joined in that motion maids no qualification about it they understood that they might be on the hook for coverage obeah above and beyond the one twenty five but they wanted to get rid of it on this other basis you are the point of the footnote was discussed there was some suggestion that somehow the eighty eight could properly be interpreted here as requiring as allowing us to leave the old bench walls in place just above the flood level of i submit that if you have it as a matter of the merits of the eighty eight if you look at what that analysis shows it really makes no sense the tunnel is a facility and if you have to fix a large portion of the facility to make it accessible which the a t m requires were going to be right as a matter  and they and that that analysis of the regulation with respect to the definition of the term facility at least makes no sense to us and i think with it maybe they'll be a time when we can be more fully developed as we as we have these isn't please tell me if these are contested facts i had sort of under the impression that the entire tunnels were under water but that the bench walls were not necessarily damaged in certain portions of it lowest part the water was up to the ceiling but there was still places where the water was above that level on either end of the tunnel in the hudson river the wall there was up to the top of the bench wall so there were very you know hundreds of yards of bench walls in both tunnels which were underwater and then the the the salt seeped into the concrete of these hundred year old bench walls and is still in there causing the corrosion answer my question and it also answers the other question i'm going to ask which i assume that the water gets into the tunnel via the land basically what's up and then it was on the manhattan side on the hudson river over by behind penn station and then it was on the queens side in the on the east river there's no breach of the tunnel itself from the river side comparison to what we're talking about here to sort of run of the mill rust that metal components have these our bench walls that have been there for one hundred years these tunnels have never been flooded like this in one hundred years until this happens and the corrosion that we're talking about is not just routine surface rust it is a process of chemical corrosion which continues because of the presence of the chloride along with the air to eat away at these things to the point where they will continue to be gradually destroyed and will have to be replaced no one was replacing these bench walls until the salt got inside the the concrete in and attached itself to the metal components inside it and  started a process of destruction which is continuing and so i don't think that it's fair to compare what happened here is from normal wear and tear or something else that this is a a trivial matter it's simply not and it's going to cost trivial it's a question of whether corrosion is  process that is a peril that's covered by the policy and i think they would argue you're trying to have it in effect both ways by saying well it's not really like regular corrosion because caused by the flood but it's in suing lost so argued that the corrosion is excluded or that this particular kind of deterioration is excluded i had not heard about the gradual deterioration before but i don't think that's an argument at issue certainly not in you in these briefs so i think i think we have the arguments very well