was sent back to district court and that act is also relevant which will discuss later coincidentally the last time i had the honor to be before this court was six years ago in a case that also involved the act ability of exclusion in an insurance policy that was that home federal savings versus tykwer title insurance case and in the opinion written by judge hamilton he reversed the entry of summary judgment in favor the insurers managed it back and that's exactly what this court should do for the that prejudice did not occur in the present situation then quote one such evidence is introduced question becomes one for the trier of fact to determine whether any prejudice actually exist in other words becomes a question of fact it was not proper for s the district court completely ignored that in this matter because we did come forward here in fact and show to the court on the summary judgment motion that there was evidence of no prejudice we listed several reasons but i wan focus on two of them the st one was as i point out before the fact that this had come back to the district court from the school was important everything that happened in this case before west few learned of  was favorable to them but that's everything plaintiffs motion from syringe junction had been denied and the case had been dismissed so when this case came back it was a complete as we've said before right i also want to address the richmond can i i don't want to move you be on notice if you have more more to say on notice but i think you know you make a fair point about indiana law sent some kind of mixed signals on this with direct notice and indirect notice and that you know that seems fairly complicated to me here frankly but what seems clear to me are the application of the exclusions are the exceptions in the  policy i just i don't know how you get around that you know the what however however the notice issue comes out you can call the notice issue but of a tie or something like that but the exceptions that judge simon relied upon in his alternative reasoning for expected injuries in known claims i've actually seen that seems open and shut and i'd encourage you to tell me why i'm mistaken only because you express that you liability let me put my question a different way how to read miller how to read what's that case republica frank republic franklin how to read frankenmuth it seems to me that how all those online not aligned intersect is better done by an indiana court and that given that you're talking about indiana insurance law and all that and that this case can be resolved on the basis of these exceptions because they seem pretty clearly to apply what why is that an improper way to proceed as a federal court here in resolving this appeal let the indiana courts sort out frankenmuth and miller and all this other stuff direct versus indirect notice and why don't we just focus on judge simon's alternative reasoning which is a lot easier well there is one reason why and that is because if your honour's would determine that in fact there was proper notice given if you which is not was not ever decided by judge simon on the issues is whether or not in so i don't think that if you decide the policy issues it renders that policy exclusion renders those issues and doesn't render the if you notice but i think that there is i'm happy to be true to the issue of the injury had been expected by two thousand and four given not only regulatory inspections that were going on but the state and the  was evidence that he received notification of injury at least as defined by the policy so let's be clear to establish these you had to either she or they had to be shown that there's been  either knew that bodily injury or property damage this of find the policies had either actually had already occurred or was practically certain to occur and for what we're saying is that they had to have known not just that there were conditions that might cause property damage or bodily injury but that in fact that those kinds of injuries had occurred i'll address the many of your example which is the only one that even comes close that not the cars but i st want to point out that the problem is that if you look at all of the notice in the form of complaints etc were of the conditions that were later found to have caused injury there was notice that there was dust there was notice that there were sheaves there was notice that there was a litters what there isn't evidence on was th were put on notice that those things those conditions had caused either bodily injury as defined which is efficient and very clear here has to be bodily injury sickness or disease sustained by a person and property damage which is important for the dust issue in middle bring up is physical injury to cancer will property including all resulting loss of use of that property or loss of use of tangible property that's not physical injury let me just turn on thinking about it dust on your cars somebody runs a red light and hits a big pile of dirt in the middle class and dust goes all over my car have i sustained property damage such that i would have a claim for property damage where if i which my insurance company isin interest copy i got dust to my car i want to make a claim under my property game which coverage on my right but i have a claim for property damage i don't think so when that's as close as we get here because all we have this evidence of being put on notice of conditions that were later found to have resulted in bodily injury and i'm just talking now about the evidence that was before the court not counting mr wills affidavit which the court disregarded and the court would park really disregard that  nations under control no no your honor in fact if you recall from his affidavit he spoke to the neighbor about this who had shared with him the belief and in fact these things were being caused by for example at the damage to neighbors a showing that the insured knew that that injury had already occurred or knew that it was practically certain to occur and so yes i do disagree that that mr will anybody of them had that knowledge and i think and and and again i think i see i've got my five minutes i'm sorry is this five minutes total of like when he left you have that's the remaining  time total so you know you reserve five minutes for bottles but it's all your time i would i would like to very quickly address the matter and also in time back and that is that i do believe there were five reasons given for want your you can address the question when you come back up i'll let ok but here's the question i have for you what what case log best supports the proposition that the kind of knowledge your are notice of the kind of harms you're talking about in the policy have to have to be known with this kind of aig you know exacting alignment with the definitions in the policy ok wait you're what you're saying is read the definitions in the policy they don't meet the definition of bodily harm or property damage ok but there's no question it all that the company in those running the company's new that they had an environmental that it's got a fit the policy definition to a tee and my question off dancer at now on rebottle what case law supports that precise proposition that's my question made please the court jeremy lack some behalf of a pelley west field insurance company the district court properly granted summary judgment favor of west field in that ruling should be a firm for several reasons i'd like to begin by addressing the problem notice issue which which is dispositive of the case i will address the exclusions as well it's important to keep in mind that this is not a case where westfield abandoned its insurers in fact the insureds have never once contested or challenge anything that westfield did with respect to coverage this proceeding supplemental was brought by appellants who sat on their hands on all matters related to insurance for seven years while waging a battle against them recycling and now having secured a default judgment against them but realizing that their own able to collect the opponents have done about face and have taken up a coverage claim that the insurers themselves never pursued under indiana law it is simply too late the rule in indiana for one hundred and fifteen years is that a proper notice provision in an insurance policy is an essential term and that the insurance compliance is a condition precedent to a carrier's duty to provide coverage and it's undisputed here that the insurers themselves never notified westfield i want to address  romero's question to my colleague about why appellants themselves never raised the issue of insurance to westfield during the case because i think that's an important question  distinguishing fact was that there had been a subpoena and a request for production served on the insurance company by the tort victim in the course of the underlying case if appellants wanted frankenmuth to apply here  they could have issued a request for production for the policy and that would have given westfield some indication that somebody had an interest in obtaining coverage appellants didn't do that the record is clear on that they waited until after they obtained a default judgment that judge ruled in or what i would note however is that i'm not aware of any case in and i don't know about that case pacifically but where the notice came from the insurers own attorney and that's what happens here the  only awareness of the federal lawsuit that is in the record is westfield learning of it from its own attorney in the course of the valuating coverage for a different lawsuit and there's no case that we could find where knowledge of the case from one's own counsel was enough to satisfy a contractual notice requirement in an insurance you know i certainly will grant you the knowledge that westfield had from its own attorney wasn't sufficient to constitute notice under indiana law so essentially appellants were able to obtain a fifty million dollars default judgment without westfield ever being notified that somebody wanted coverage for that specific lawsuit but even if i even if you have to accept the palace position that the knowledge that westfield had after a year was sufficient notice which we don't concede west it was still prejudice in that in that one year period because it lost the opportunity to select counsel of its own to handle the case at the beginning it lost the opportunity to and to conduct a coverage investigation it lost the opportunity to involve other carriers who had provided insurance to them recycling in in the years that the damage occurred and the fact that there was no adverse decision is not the only form of prejudice that the courts have recognized and the fact that  recycling hadn't had any adverse decision against it doesn't cure the prejudice to westfield from losing those opportunities it's impossible to say in retrospect how westfield appointed counsel may have handled the case differently if it had been appointed right off the bat it may not have brought the motion to dismiss on jurisdictional grounds that came up to this court and was reversed we just can't say and that uncertainty is itself prejudicial as this court has recognized the other point on prejudice that i'd like to make is that the manner in which westfield learned of the federal lawsuit was itself prejudicial because westfield learned of it after being formally notified with respect to the identical state court lawsuit and what that showed to westfield was that the insurer was sophisticated in matters of insurance and it knew how to request and seek coverage by providing formal tender when it wanted it and so because there was no similar tender with respect to the federal lawsuit westfield was left to conclude and i think rightly that the insured and made a strategic decision to go with its own attorney for the federal lawsuit and it never changed course from that decision but the last point i want to make on notice is to address the consequences that might result if the court were to accept the parents arguments because those consequences would be profound on the insurance industry as well as the legal industry if the court overturn the one hundred years of precedent but on the proper notice requirement it would open a pandora's box of issues it would change the way that insurance companies do business because if awareness of a lawsuit is equivalent to notice then  st of all it would incentivize insurers to put their heads in the sand and avoid information that could trigger an obligation without intent responsible insurers meanwhile would be forced to incur the an increased administrative burden to actively monitor lawsuits against their insurers even where the insurers themselves never sought coverage and they would have to bring additional declaratory judgment actions to seek rulings of no coverage even where the insured itself never requested coverage which would increase the burden on the court system and all these increased costs will inevitably be passed along to the insurance companies customers in the form of higher premiums similarly if the court were to hold that knowledge from a an insurance company's own and malpractise and it's for all these reasons that insurance policies place the burden of informing an insurance company on the insured in the st place and that contractual choice should be honored if there are no other questions about the notice alleges paragraph one hundred and eighty three and i quote defendant's meaning then recycling and mr will have been aware of nuisance conditions that exist at the v m site since july of two thousand yet they have allowed those nuisance conditions to continue to this day now as your hours are aware the westfield policy st took effect in two thousand and four and so it's been the central theme of appellants case since literally day one that them and mr will knew that their recycling activities were harming their neighbors for years yet continue to operate in the same fashion that is a textbook example of an expected injury and a textbook example of a known claim and those exclusions clearly apply mr lax your why don't you respond to the argument mr richman made that that's not enough and the reason it's not enough is because there's no way to know that it fits definition only within the policy you know with absolute certainty certainly your honor there's no case law that says that that insured has to know that specific level of harm  meet the policy definition in order for these exclusions to apply for nics if an insured knew that the exact property damage had occurred before it obtained a policy that would be insurance fraud the case law doesn't require that what the what the case law requires and help direct the court to the general housewares versus national surety cases indiana court of appeals case from two thousand that was actually in the context of the common law in the last doctor not the known claim exclusion but but the principle still applies and i'll quote the court said there is a distinct difference between knowledge of the existence of liability and knowledge of the full extent of liability the existence of liability can be known without the full extent of liability being fixed if the known liability has occurred or is substantially certain to occur the known loss doctor in bars coverage and what we have here is a case where clearly the insurers knew of the existence of liability they knew that they had a fugitive dust problem they knew that they had been sanctioned by the indian department of environmental management for the emission of fugitive dust they knew that the residents had come forward both to inspectors and to mr will himself to complain about dust on their cars and on their houses and they admitted that because of this dust problem there was an increased risk of an emission of fugitive dust to surrounding properties that is clearly sufficient knowledge to satisfy these exclusions can i ask you a question about is it possible to route that point in your view actually in the language of the policy it is your honor and let me tell you what i what i was wondering about and mr richman can respond to this and tell me i'm wrong that the policy on in the notice provision talks about if there's a known claim obviously but also in section four paragraph two a also providing notice of an occurrence or offense which may result in a cl so it it seems like on these particular facts given what's alleged in the pretty serious environmental regulatory issues that this company was facing it's hard to say that that language may result in a claim is not satisfied but may be and i am i wrong to think of the issue in those terms you're not your honor you're absolutely right that the insured certainly from the agreed to waters event entered into with dam in the the fines and penalties that it paid it was certainly on notice that a clean may arise and that should have been enough for the insured to put westfield on notice that there may be a coverage claim coming down the road and i would also point to the language of the known claim exclusion itself which says that as long as injury or damage has occurred or begun to occur in whole or in appellants griefs i haven't heard it mentioned this morning but it's a significant phrase because it means that a lot of it's basically what it holds are saying is that unless them and mr will knew of the full extent of the damage then than he paid to have people's cards cleaned i want to briefly touch on the myth mr wills affidavit the district court rightly kept out that decision is subject to an abuse of discretion standard so unless the court finds the judge simon acted arbitrarily which we don't believe he did that decision is intitled to deference but what mr smith what judge simon did was that he looked at mr wills for page affidavit and he held that against the dozens of documents and contemporaneous statements and words that mr will spoke at the time where he admitted to dust problems and then it looked at the four page after the fact affidavit in which he made these conclusory denials that he had knowledge that the specific policy provision had been triggered and i think he rightly balanced those against one another and said that the contemporaneous words and actions carried far more weight if an insured could avoid application of these exclusions simply by denying a belief that they were triggered after the fact then these types of cases can never be resolved in summary judgment and those exclusions would be rendered meaningless that were uninsured waits seven years to notify its insurance carrier of a lawsuit that is simply too long and it's not a close call and in this case the insurers never provided the contractual notice and even appellants themselves waited seven years evidence however shows that there's another reason why after it was remanded back and afterward the clues sadly firm left why they didn't do it and that's because they knew it would be futile on the same exact claim in the state have been futile because tykwer in that case had already said that they were not going to cover it to go back and do it again as opposed to speculating about what westfield may or may not have been concluded about that the real fact is that westfield had a duty the policy says we have a duty to defend cases and they have a right to defend the garments where they were asked but and it's never been disputed that due to defend doesn't end of the trial court you have a duty to continue to defend some challenge on appeal and they don't dispute that so upon knowledge that this was on appeal they were supposed to get involved in that case and think of all that we talked about before about no prejudice by virtue of it was a do over when it came back but all the things they would have done and learned if they'd come and offended the appeal here so and the other thing is that this whole prejudice thing you've got to remember ok i'm talking about no prejudice they're popular prejudiced you got  let's let's now turn in my one minute and thirty seconds to answer your question st your honor we are not aware of any case that addresses what exactly an insured must be aware of and to have to expect to trigger these exclusion but what's controlling is what the exclusions themselves say what they say is the insured must have been aware must have been aware that bodily injury or property damage had occurred or must be expected that it they were going to cry or you can stipulate nor what those policy terms say they define what had to have been known to very sample the mr lax the st about what no evidence none of bodily injury and knowledge that is the cause of these conditions bodily injury or property damage had occurred or it's practically certain to occur and that's what i asked to be sure and with twenty