evidence is can be used in some circumstances to clarify an ambiguity but as we've pointed out in our brief and ensure this is a two prong case duty to and a duty to defend case two counts of the point so while it may be appropriate to consider experience of evidence with regard to the duty to indemnify it is not up for it to consider it with an ambiguity  with only with regard to duty to defend if there's an ambiguity as to be construed in favor of the insured so there analyze the duty to defend separately from a duty to indemnify oh yeah well i mean i think a two part analysis with regard to experience of evidence with regard to indemnification i don't deny that a court can consider extrinsic evidence with regard to that but this is was an ambiguous contract and it should have been construed on a duty to defend liberally in favor of the insured in favor of the answer to both the crops being one covered if if the prison evidence shows that only those maimed and it a cover and this person is sixteen recover or someone who is not named then that would seem to me that the the duty to defend  believe the experience of good riddance is clear because for example brawner the judge found that the undisputed evidence to both parties knew that the northern had to review and is a different way what in the contract of insurance do you think gives you coverage well we believe what provision maybe you can direct me to that the broad fruition in the personal indemnity policy the whole condition so how about how do you get out from under that the current condition is number three now as we pointed out under you know the greenlee case or from the first circuit and the policy in the course of conduct of the parties the material aspect of that was that there not be more than two crew on board at any time and that didn't occur here and then in that second paragraph says in the event additional crew is to be employed you know not to exceed six and there are only five here the propriety of prior notice but the policy doesn't contain any review any right to review credentials and to recheck people and i'd say you know first of all it was our position that that which is the named crew covered under this policy because it doesn't spend that relates to items three and four in the personal and silent with regard to what occurs if you have the last into crew onboard and you know less than the last in the six maximum which is what occurred so i'm sorry you saying that if they're that of the injured employee here have been one of three on the ship at the time you would have no claim i believe that there were three more than two in the ship if there were three if they are you sure you think the naming of the crew in this special condition is just what what is up i mean what does that mean you think it only goes on to burial expenses and really and then judge play would have some sort of she would find just a matter of law she would review these facts and she would be the fact finder and she would then and her judgment that's what you want right well i believe is relevant here while i'm saying but that's the result she would get is that we send it back to judge blake and we say no you can't grant summary judgment because there is this this because you could interpret this policy so that the burial expenses and the reap a patriot only they are dealing are referencing this tough policy provision dealing with crew and that otherwise there's coverage for all person which northern is an opportunity to present it's not claiming it didn't get to present what it wanted does not clarify the ambiguity is a matter of law then the policy has to be construed for the duty to defend in favor of the insurance trust three eighty eight marilynn one sixty two eight seventy nine a second eighty one and in that case as a common law at every because the maryland insurance acted in apply to the defendant because it was an insure condition to avoid forfeiture and the point being that if the premiums have been paid if the material aspects of the condition which is not having more than two on board and not having more than six total have been met then under maryland insurance law the contract is construed this provision to avoid four for a cure whenever possible because this is kind of a gotcha thing and that they're not saying we were prejudiced because he didn't provide noticed it we didn't get an opportunity to do investigate as i said they did investigate they concluded their investigation it was during the policy period and not saying any exclusions are there just saying well if you had provided notice you know so that's a big likely earlier we would have coverage but since you didn't we don't let me give enough to help me out at least and understand because this is where i am a symptom of trying to get things you talked about experience of evidence expensive evidence here that seems to me to be quite important is the evidence that every time there was a crew change you he immediately inform the oil been of a change to ensure there was covered for the continuation of proof and if you're seeking expensive evidence to understand what is the understanding with a policy that would have to that seems pretty compelling to me that you understood that this policy only covered folks who were in that policy but brauner said in its discovery responses that the reason it provided that information was because it was its understanding that it was material depending on a number of employees as if it exceeded a certain number to the premium because they were under six here it didn't and just a premium and it expressed its understanding that that that was why it provided the information now that the broker of course and then as we pointed out northern would get information and they would just list the for there was no substantive interaction they have no right under the policy to review and reject the qualifications good morning runners may please the court robert ferguson for the northern assurance company of america i'll be brief this policy was in effect at the time mr calandra had his injury  the event of any seaman making a jones act claim but this policy restricted its application to employees of bronner who might qualify to make  claim under the jones act by defining who is or is not a crew member and in the special conditions indorsement the company specified that it is a condition of this policy that the named crew members covered under this policy not just part of it but the whole policy is and it names six individuals by their names and mr callender is not one of them very same position and duties as those brawner employees that are expressly listed in this endorsement mr callender's is not listed in the endorsement and therefore is not entitled to coverage it under the policy bronner's not entitled to coverage under the policy for any claims arising out of an injury to mr callender's further brawner admits in its response to a request for admission number seven that was served calandra was not listed as a crew member on the policy on the date of his injury they do make note that some time later he was added and that is certainly consider consistent with the course of dealing that  coverage for any claims arising out of his injury now brawner is critical of judge blake's opinion in a couple of ways first the owner is critical of judge blake's use of the word could instead of would quite clearly judge blake set forth the applicable standards for interpret in the policy including what meaning should be attributed to the policy by a reasonably prudent lay person when looking at the terms she applied those standards and interpret in the policy she set forth in her opinion a separate section on interpret in the policy going through the policy language she concluded at page eight of her opinion that the policy provides coverage only for those injuries suffered by those crew members expressly listed in the crew endorsement wh about the any person well the any person provision is part of the general coverage that is offered by this policy because other people who are not crew members might be injured and they would be covered as any person  an occurrence but this special endorsement or special conditions indorsement is a limitation on the application of the any person coverage when it be when it is applied to cr members and the law in maryland is that conditions that apply or that describe the coverage and may limit it from the general coverage afforded by the policy are to be controlling over the general language of the policy and there is no contributory negligence defense under the jones act actually there is there well compared to fall very well cared to fight any person in maryland you have available a contributory negligence yes we see that fence in other words my point is simply that there are differences in the wall that make sense of this policy distinction between any person  and the crew's most a crew is more likely than not to have a maritime claim under which maritime law would apply with comparative fault and no assumption of risk for a seaman right  of course is well taken bronner is also critical of northern for not addressing two of the cases that brawn are cites and it's brief that find that the use of the term crew  ambiguous and in fact we did not address those because we think that there are not the least bit instructive for the court deciding this case in those two cases the policies did use the term crude but it was undefined really undefined as a counterpoint to what our position is in this case our endorsement not only uses the term crude but specifically defines them as six particular her opinion where she discusses interpret ing the policy she concludes that there is no ambiguity she does not say i conclude lier but i take your point he doesn't use those words but she ends up at that point because she gratuitously goes to the second section of her opinion where she discusses the extrinsic evidence mainly to point out that wrong or in its dealings with northern over the past four years prior to mr colanders injury dealt with northern just as northern is proposing that this endorsement be interpreted and in fact during those four years there were ten different times at least when  brawner contacted northern or actually the broker international marine underwriters to add or delete a crewman from the policy so she simply points out that their course of dealing is consistent with her interpretation seems to me says any person when you say oh but this indorsement provision modifies that and if you look at the first one navigation right now it says if there is a fare to comply with this condition there's no coverage good enough and the second one passenger's last line again is if there is a failure to comply with the condition there is no coverage with the third one crew there isn't that language now there is not that i'm and we're just talking about is a condition of this policy and so i'm not saying that this is the best reading of the policy but couldn't their argument that respect to the any person provision well if they actually said that in well they don't or say otherwise they talk only about crew well the earlier provisions that talk about crew they would be modifying to be sure but it doesn't say if there is a ferry to comply with this condition there's no coverage under the policy no it doesn't say that because this specifies which crew members who are  this policy and it is consistent with the procedure that they periodically identify you to remove them or add them understand i understand your argument i'm not even saying it's not the best argument i'm just asking you if it is possible that the that the other argument argument and it has been made in this case but it is not a logical argument with all due respect because under maryland law a conditional policy may limit coverage through be sure and they say it does it limits coverage with respect to the burial expenses in the report protrusion expense and i think that the absence of language saying this paragraph three coverage or there's not coverage that's not there either i agree it's not there either but i think it is most logical to read this as i are limitations and i agree with you it is most logical and  judgment i don't i agree with you it's an argument that can be made but it's not a logical argument under the terms of this policy that's my point and the court can still grant summary judgment  i see i see the doubt in your in your face but i'm not i can't really a question that will let me ask you the same question i asked your colleague if we should conclude that this is policy does have  conclusions of law right but i think and i have this is very issue in one of the cases come in the coming in your direction because the policy doesn't say if these terms aren't met you have no coverage with the reason that that has a little bit of a little bit of swing is it does say it with the two prior conditions that's true and we have coverage for any person that true but coverage for any person is under the general provisions of the policy right and yes this habit is an exception this narrows the application and just because the policy does not say if this condition isn't met you're not going to have any coverage it's sort of like what's the point of writing this this way it is a condition of this policy that these six people are the only crew members covered their purpose they say the purpose is to deal with the various fences and the repatriation well that that i think defies logic because well let me ask you this when i pose this to your your friend on the other side he said oh no no to judgment if there's a spirit defect i did hear him say that but if there's a dispute a fact i don't know how you get judgment as a matter of law when he said that it's tied up in the business about the policy is unclear then it goes to the insured or it may be construed against the insurer the trier of fact may construe it against that ensure that doesn't mean or you know respond to what he said and this is your last chance to in front of us anyway or understand that if it's remanded because you find there's a dispute a fact then i think the trier of fact  has to decide that and it may construe it but does not have to construe it against the insurer because the it if it's the fact finding stage it can take into account all of the extr ordinary ordinarily yes it obviously if there are disputes of fact we wouldn't be in total judgement as a matter of law but you are correct that i was talking about the duty to defend specific and what i tried to say and but you know obviously now the other issue you're gonna correctly pointed out that the conditions one and two do have the language that is absent from condition three within the general conditions about no coverage applying and as we pointed out in a brief there are a number of other places in the policy where that app that how that language also applies but it wasn't used here and three one to have the language three does not but is worded quite differently from one and two apart from the sentence that's missing from three and whether those three provisions taken together on account of the absence of the final sentence appearing in one in two from three it's a question of law well i mean determining whether there's an ambiguity is a question of all now maryland law folds if you look at the policy as a hold including the any person provision you don't want just look at those three those three conditions yes or no the whole