sole basis that the court put forward to not consider that claim was it's false impression that you can only consider claims that had been raised in the prior summary judgment i think it's clear us there was nothing in common between the two cases and it was only a few days before the motion for summary judgment was actually decided that we got the transcripts of the depositions of the two other i gather you weren't involved in the other knock now that was completely other council can put in another character stopping you from going the other him about what they were doing their claims and everything else no matter of fact  mine but in probability will fail before you get to the next overhaul and we're talking about a vessel is going in the bering sea where where you don't just call it a requirement but anyway that the court got confused and thought that this was one of the manual operations and maintenance manual which was aboard the vessel and it contains the same language as the owner's manual but on page one twenty four it wasn't you think people didn't read the whole thing  well you know there are there are situations where you have like a guy that changes his oil changes the spark plugs and he gets owner's manual that on your map owner's manual says if you're going to change out your levels and changes filters and that's about it he's not a specially trained mechanic that knows how to repair an engine it's more analysis of the guy than just changes the soil in texas they harvest the plants are all to form the court held that there was a duty to investigate not when they bought the herbicide not when they had hired the herbicide but once they had something go wrong and the dark case very there might have been a duty to investigate to go back and say hey what are the manufacturer recommend on this so it's clear are watching law this this duty to look at them to look further into special limitations case is is trigger once you have an injury and once you have some way that you start looking at here i think it's two things are clear in watching one you look at the specific knowledge of that problem concealment not the general knowledge of whether or not he has some knowledge of mechanics this is like the fisons case in the doctor knowing something about that particular medical procedure but not i mean about the medical condition general but not that particular procedure if there is a duty to disclose created by special relationship we don't have to show intent it on the consumer protection act or under fraudulent concealment what happened here is they bungled it he thought to him for an overhaul they don't have to replace the main bearings he didn't go back he didn't read the manuals and then they did this whole thing after the fact of their story keeps changing that they say well you look at the panel ask a case it's insane machinery again and in that case the same thing happened there was a notice from the manufacturer that they ignore now these these vessels go in the harm and in the context of this it it is because it's just a choice of words they can't i mean factor can't require you to do anything all they can do is recommend they can't force you to do something but if they if they recommend that you do it and if you don't do the engine is going to fail i'd say that's required concealment there is claimed to have gone on here there's no evidence of any sinister motive at all and that the label fraud simply does not fit this case assume for the sake of argument that that was already in the complaint motion for reconsideration they filed a motion to file a second amended complaint and it was in the second amended complaint that for the first time the consumer protection act claim was put forth so i think technically it was not in the i'm not quite understanding is the mystery surrounding the mileage and how that would have to the recommendation or replace bearings at the time that the engine was  over there is some confusion on that score and i think that the background is the following the service our meter was broken on the engine at the time of the overhaul it said it had i believe forty one hundred  sixty three hours and there was confusion on the part of the mechanics and we contend also on the part of the vessel owners as to what the true hours work judge cohen our he concluded that there was a c mechanics that they were just believing we're told that the hours for far less than they actually were far less than the overall period and on the other hand we have the captain of the vessel claiming that he doesn't remember the that's right and then they put a new one on and so the new one started at zero one and i think that i don't think so but it but it but it does color the situation on particularly when you start talking about gross negligence and good faith what was the understanding of the condition of this engine in the hours on the engine but ultimately i believe judge canara was correct it's not really a material fact and he was absolutely correct in dismissing the concealment claim and all of their claims are some permutation of alleged concealment of the manufacturer's recommendation but it's undisputed in this case that that recommendation was thousands of hours before this overhaul occurred in his deposition captain girding acknowledged that he referred to those manuals for maintenance and in fact he actually started at one point under questioning you may have even read the very recommendation about mean very things and he was not prepared to say that he definitely had not read them but it's definitely undisputed that he referred to those from time to time it's absolutely incorrect and there's no evidence in the record to suggest that judge coon hour was confused and the judge who now are thoughts that the vessel owners actually had the caterpillar guidelines for musical parts no one ever made that argument and and his opinion doesn't reflect that the only arguments that were made was that the recommendation is contained in the owner's manual and in this ma admits in his deposition and in the summary judgment declaration that he had both and referred to paul and i think the operative point of law is pointed out by the driver of the quincy farms case and i think that dealer of another manufacturers product and one claim that the farmer made in that case was that the dealer concealed the manufacturer's recommendation well that the clean point that the court m concealment because that recommendation was right on the label and that fact alone was enough as a matter of law to dismiss the consumer claim it's exactly analogous here because it was in the manufacturer's literature it was made clear by the in force that the bearings were really used so there was this maybe it would be a fraud case if if there was an allegation that we tried to pass off all bearings as new bearings we charge of for new  absolutely is not the case here there's also there's two other separate independent grounds to dismiss the concealment claims which can now revive on one of those grounds and that ground is that as a matter of law if they stay on the virus experience the buyer should have his entire adult life in the fishing industry he had a four year degree he was responsible for maintenance under the partnership agreement and he spent his life on this boat he testified that he spent about eighty eighty five percent of the time the boat was running on this vessel that adds up to a few use their estimate of amount of time of thousands and thousands of hours that he lived and breathed this engine and he was just he was the engineer and the captain he also testified in his deposition that he knew the function served by main bearings and he knew that they were aware items they had to be replaced periodically he had the manuals on board he referred to them and it is perfectly clear that the bearings respected and reuse and in this situation again reference to the gerard versus quincy farm case is exactly on point there in that case they also referenced a second independent reason to dismiss concealment claim and that was because the court said the experienced potato farmer had a duty to familiarize himself with the manufacturer's literature that came with the product in that case it was the label in our case  man and even cases dealing with concealment as a standalone cause of action as opposed to concealing concealment having to do with tolling the statute of limitations maintain this requirement that if you have sufficient experience you have a duty to inquire further or to or there's no concealment of the information is readily available in th disclaimed except gross negligence and intentional misconduct and specifically in that case the court dismissed the negligent misrepresentation claim and allowed to proceed only the intentional misrepresentation and there's absolutely not one with of evidence of subjective intent to deceive in this case and this is where you do get into the heightened fraud standard you have to have actual subjective intent to deceive and it's got to be proven by clear cogent and convincing evidence and this is a requirement that the vessel owners in their arguments have consistently ignored it some disputed that upon inspection the variance for an actual and condition they looked like they were new they came out of the box there's no evidence that the mechanics misrepresented the condition or even were honestly mistaken about the condition going back just briefly to the to the south to sampson mariner situation i think i've already covered that even if the c v a claim would have been before the court he could requirement is that in the exercise of reasonable diligence that this information could not have been discovered earlier well it could have it very easily could have and the suggest that there was any sort of underhanded dealing in discovery is absolutely false it simply did not occur the cross pollination between these two cases very strik bearings for both engines i think that the santa mariner case was a little bit distinguishable because they also made the claim that there was fueled of the ocean that something happened to fuel injector that caused twenty one i think twenty one to twenty three percent fuel dilution massive fuel dilution single into raga tour that said tell us where the mechanics who did the job in the sense of irony they never pounded in a rocket or the documents they say that were slow to be produced didn't contain that information and the fact they were produced more than a month before discovery closed they also didn't contain that information they never asked informally who those mechanics were so if they would have taken those simple steps to ask those questions they would and the district court also can control correctly concluded that there is no tribal issue of gross negligence in this case and i think where that the vessel owners truck coming in their argument i gross negligence distinction either this is the maritime context if you had a tribal issue of gross negligence any time there was a defect it manifested itself at sea again that would that was swallow the entire rule in and if this rate the the entire doc but i think the proper guidance is again in the royal insurance company case and there they defined gross negligence a couple of different ways  including intentional failure to perform a manifest duty and the extreme departure from the standard of reasonable care and just when are about exactly right when he said that for there to be a triable issue n c would have to fail to replace the bearings despite an expressed request from the owners now that would be an intentional failure to perform a manifest duty and that simply did not occur in this  case there are other cases that say well the difference between ordinary gross negligence is a point on a continuum and if you look at the washington cases and particularly there's one called mr bruce's tutor it's a nine hundred sixty five case that  involved a driver of a vehicle taking a left hand turn into oncoming traffic and how the court characterized that was the failure to exercise even life care in the face of imminent perceptible and obvious danger so there's got to be an extreme departure from the standard of care and there's got to be a highly probable and imminent danger and there's no evidence  if the boat was well maintained that the very you could get more life out of the barents there was never any indication of that this was a particularly troublesome practice it's and it's not as if they didn't give any thought to the  all they inspected them and they were excellent in brand new condition the risk you're also wasn't imminent the manufacturers recommendation as the court noted is simply a recommendation and what the recommendation is is that these probably won't last to the next overhaul they probably won't last thirty six thousand hours well if you apply that to this case using the vessel owners estimate that's a recommendation saying well this probably won't last another twenty one thousand hours over the next six or seven years well nobody made that representation here and i think the best ones have to take some responsibility of keeping track the condition of those hours on the engine everybody knew that as to the waves overhauls work there are two different kinds of overhaul there's major overhaul this every fifteen to eighteen thousand hours and then there's a in for this immediate this intermediate overhaul which is at the half life a major overhaul and in both cases the engines blew up shortly after that top and overall and in both those in both these cases that was the second justices are looking at the terms fraudulent concealment for what they appear to say presently concealment is not about fraud it's not about concealment in this kind of case fraudulent there's no fraud going on your mind says intend doing bad things under washington law if there is a special relationship there is a duty to disclose if there there doesn't have to be an intentional concealment there doesn't have to be intentional wrongdoing and the in the cunningham case it was it was a question of you know the records were available nobody tried to hide the records as to what the attendance was at the theatre and in the ceiling on concealment there's not and you don't have to hide stuff you just don't disclose where you have a duty to