there is no evidence that that happened second even if a person were in addition insured or word title to additional should coverage under the lexington policy that coverage should be limited to two million dollars because the plain terms  umbrella policy state that coverage is the loesser of the amount called for in the contract by which perception becomes an additional insured or the amount stated in the declaration finally i'd could i ask one question before you do that you certainly that's a smith your chance it seems rather ambiguous as to exactly who mr j was working for what and who better fitted from his activit ultra sine jet to the well because it wasn't doing very it was it was underperforming jett was there at the company man for a trial in that function he would if he saw something that was happening at that well site that was for example a safety violation or something that might lower the productivity about well and cost his employer or his ultimate principal culture money he pointed out but the evidence is clear that all truck recruited him ultra hired him all she reported to ultra management he had no control over precision person now precision had no control over him when they were control versus personnel folder what to do how to do it or when to do it which is not sufficient under the lexington policy for cover because it has to be work that the named insured performs before the addition sure meeting has to be worked up to perform for precision which are just described as the opposite that would be worked for susan performing for buster and that's just simply not sufficient and staying on the job site i think there needs to be some manner of control i think that's the key there has to be superstition have to be so able to control jack when you tell somebody and i'm a common ordinary meaning that i work for mr smith there isn't and i believe there's an inherent common understanding that that means that mr smith can tell me what to do he can control my actions and that's just not the case here gent was working the if you look at the robert sand case this doesn't come up very often in case law and in part of that is because of the the way the contract between alton upstream defines who needs to be named so broadly as including the injured employee is doing is outside the scope of the designated operations on the dock page that this court and the lower court decision did not buy that argument no no should it then said that the actions did not arise out of the need to insure its operations which is kind of what precision is argued here so they're kind of for lack of better term putting us in a strawman position we're not arguing that this didn't arise out of upstreams work we're just say and the reason is if you look at endorsement three of the lexington umbrella policy that plainly sex that any lexington will pay on behalf of the person organization insured is obligated by written ultra upstream contract the district court held that lexington forfeited this argument but there's a couple problems with that in the st problem is that what the district court's decision does is create coverage there is a certainly there are differences and but the ultimate but the ultimate result is sort of the same which is that it's creating coverage under a contract that the plain terms of the policy do not provide well that's one way to look at the other way to look at it is you wait there because you didn't do that you didn't do what you are supposed to draw in a timely manner and people get people face waiver for all sorts of reasons when they don't make arguments in a timely that order was given follow now and from the st week but the judge is old in the decision about waiver was your content conduct before the remailer so correct so whatever the judge did later should not have affected in the judge's mind didn't affect the fact you had already waived that point on the st go around by not asserting it well i also would close however due to the course said you don't get a do over on things that are unrelated raised before really match up there's generally my understanding is that i don't believe that there's an option that was attached to the complaint the policy when it was listed in the complaint it was there the entire lexington policies were issued in the livered in texas so it is completely novel called the district court was correct in rejecting their request on that point as for their request for common law pre judgment interest it's so far as the district corps decided that lexington was precluded from raising a prior argument based on order of updated briefing on what is that issue i don't see why the same should not  honors this case could really be divided into twenty two separate parts the procedural components how did we get here and the substance of the case and i want to hit the substance st because i believe strongly that we win on the substantive issues and i'd much prefer to win on be an example about but the judge has a lot of discretion in revisiting your issues rebury figure issues resurrect to get issues during the trial allowing in particular arguments in this case were arguments efficiently forfeited or d abandoned such that allowing them back in would have been an abuse of discretion and that's that's the standard under which this would be couch i do prior to that appeal then those issues can be race and then the rd area in that this case establishes are those issues that were timely race prior to the st appeal but still remain didn't see a lot of living language you're correct your honor just discourse which in his opinion says generally we have we read it will readily recognize we have not addressed all the issues or the court we in particular the issue of whether a person is an additional insured for example he said for example and the parties are free to go back and litigate those issues i believe is the language precision is an additional insured or is there an argument also whether jim was an additional insurance your honor i don't recall seeing any discussion argument as to whether gentle is and barring one shared i believe the sole argument wise and was persistent additional insured as to that point i think it's helpful to go to the language used itself i don't want to be clever with the words i want to look exactly to what the policies d and underline contracts say all of this starts with the ultra upstream pond tract what did alter out in upstream contract for a section three dollars it says contractor being upstream agrees to procure and maintain at so expense with solvent insurers and insurers acceptable to the company which is altria policies of insurance in favor of the company upstream it's subsidiaries affiliated related companies they're working interest owners co owners contractors and subcontractors and any others for whom any of the foregoing may be acting in other words ultra is hiring upstream to bring the company man the well site manager out and ask part of that contract says you upstream you're going to be managing well site you must procure cured in honor of that contract endorsement seventeen a says who is an insured is amended to include any person or organization you are required to include as an additional insured on this policy by a written contract or written agreement in effect during this policy period so that ties in and holds in the ultra upstream contract that says anybody under that contract that you're required to insure will insure and in fact lexington at page thirty six dollars of its primary brief admits person is an additional sure that's the language right out of their proof so the question here today isn't really is per citizen an additional shared the question is is the scope of that coverage broad enough to cover injury and that's where lexington ties in seventeen b of their endorsements and again it's important to go to the language itself again i don't want to be clever the language itself says the insurance provided to the above described additional insured who is the additional insured its all truck and all its sub contractors and everybody's everybody has their under this in depth endorsement is limited as follows the person or organization is only an additional insured with respect to liability arising out of your work or your product for that additional insured fortunately the one supreme court has established a number of principles to help us understand what that might mean st it's important to note that interpretation of an insurance policy is a matter of law and on and accordingly judge johnson suspicions in relation to those matters would be reviewed to no o the st policy that the y misprint court has given us to help interpret these types of contracts is the attention of the parties is the primary consideration and it is to be ascertained if possible from the language employed in the policy viewed in light of what the parties must have reasonably intended you go to alter upstream contract what did the parties intend they intended for protection for everybody at the well site words must be given their common ordinary meaning i'll get to that in a nd significantly language should not be so strictly construed as to thwart the general object of the insurance in this case i want to be clear and sometimes after o argument my best or whether i made a point clear enough so i would respectfully request your honour's to take note of this so that i can sleep and if the language was accepted or the interpretation of lexington was accepted it would create a loser in terms and let me explain why st they've admitted that they did provide precision insurance as an additional chip it's in their brief it's uncontested it's admitted but yet in that same brief they say there's no scenario under the facts of this case where precision could have been controlling the actions and activities of upstream because upstreams ahead of them on the chain of command they're the ones to direct the imprecision therefore there is no factual scenario when to the facts of this case what procedure can jump them and direct the activities so under their own into a protection they're telling you we never intended to provide any coverage of any kind for these significant premium receive for providing this coverage there their interpretation creates the street coverage next because insurance policies do represent contracts a bit he zhen if the language is ambiguous the policy is strictly construed against the sure john wayne is quarter the same as that it might hit my half of the universe this world needs more cowboys he says if the world isn't black and white i say why the heck not in this case it's because if there isn't any ambiguity lexington drafted that way finally and a very significant cases the recent case as of april of two thousand and nineteen which i believe came out towards the end of our brief period so it's american national will be burns within that case this court explained where policy language is fairly susceptible to two interpretations two constructions the interpretation favorable to the insurer will be adopted the court goes on to say that the court isn't interested or concerned with a definitive pronouncement of the best or most reasonable reading what the court is concerned with is if there is any reasonable policies coverage is provided looking at the words arising out of the marathon case means that's just a not a natural consequence of or a cause will connection be readily apparent your work in this case is clearly strange where to look at the activities that mr jett was performing on the day of the activity on the day of his injury the rigging down a well which i understand is a fairly dangerous activity they're pulling pins and lowering the derricks and as he's stepping down off those steps the bolts failed their falls he's thrown off the railing why is he up there on the ridge in the st place he's directing and supervising procedure personnel telling them this is how you do it this is how you keep everybody safe nobody go over there it's dangerous to be over there prior to the rig down he holds to supervision meetings just because he wants to make sure everybody does it right so history excuse me directing all these activities to except  interpretation you have to look to that word for that word for they read that to mean under the supervision of control of and they read that into the statute or into their own policy that's not there anymore in policy i had a hard time finding a definition of the word for but last night it hold it up on mary webster that means the object or recipient of an action good percentage and were they the recipient of some action that day yes they were they were being supervised and told what to gent i have a short time left i do want to get to the single aggregate endorsement issue which is that two million versus three million again i think it's important to look at the language used within the policy interesting lexington wants your honor struck septa plain meaning of the word insured contract and use use what might be commonly understood as an insured contract that ignores the fact that they chose to go as far as to define that phrase within their policy and their definition of that phrase contains the language the part of any underlying contract or an underlying agreement where you agreed to indemnify somebody so that endorsement under their own terms as has nothing to do with the nature of contract this is a separate insurer much insurance procurement clause which is not voided by the but employment end of the statute because of that this indorsement simply doesn't apply to this case the church arises independently and in so far as the lexington policy does provide meaningful coverage for example have been sued here i think there's no doubt they would have been entitle to cover jimmy hoffa's policy cannot be illusory for it to cover some meaningful rests and it does and as to your honor's i'm sorry as to the insured contract argument that council just made with respect to endorsement three if you take that to its logical and it would be almost impossible for what council say is that an indemnity obligation is separate from a insurance but your apartment which it is but if you take it to