i like to reserve three minutes for my rebuttal i mean i'll keep an eye on the clock thank you defendant's motion was brought under c r fifty six which requires the district court take all reasonable inferences in favor of the plaintiff further because defendant was moving for an affirmative defense the burden on the the burden was on the defendant to prove all elements of his defense the district court below ignored both those rules when it took evidence in light most favorable to the moving party here the district court violated both those rules when it term and no reasonable person could conclude anything other than the statue of limitations had run the court made five critical errors and the district court did not make not one but two different ways to trigger that to do new ways trigger the statue of limitations in a u i and coverage the st way was if a if a mediation ended without success and the nd way was just simply an offer to pay somehow were triggered statue limitations and i would say constructive knowledge that the defendant district court found the construct had to cling to the plaintiff should have known that the defendant was not going to pay and that one year from the time of the action occurs and that is also part that the th point that i was going to make it does not define the word a career so that while this circumstance in what's your position on behalf of your coin as to the trigger date the date the one year started to run yes so that issue is handled by sake of vs par com which says that in a u i and case there are two ways to trigger statue limitations gets you i am that is there has to be a breach of the contract and a breach of the contract occurs when either one there was a denial of coverage or there is a payment of less and neither one dollar of those there is no evidence in the record anywhere that there was a denial of coverage nor is there any evidence in the record that there is offer to pay a payment of less is there and there's nothing in the record of any written offer by the insurance company or there is no written offer by the insurance company correct the only thing that is in the in the letter is that the insurance company said that they would review information and requested additional information as i claim is i read the district court's decision the court ruled against your client with respect to the statue limitations on two grounds one was a statement as to what happened in mediation i'm going to put that to one side the other is well the mediation failed and we may properly infer from that that she wanted more money than the insurance company was willing to pay and that was all itself indication of breach how do you respond to that nd argument yes this is the where a small reasons it is not simply that a mediation occurs that there means that there is an offer and there is a response to their offer and at the end of the day there's a denial to that offer a mediation can and because the parties need additional information in fact in this record there was an email from the defendant requesting additional information after the mediation and months after the mediation a month after the mediation there is an there's a request for additional information so using that if you're going to draw take the light most favorable to the plaintiff you may conclude that the mediation and negotiations are still ongoing and that there is not a final decision that's going to let me out and it's a different and different way as well and this i guess feeds back into that statement let's assume that the mediation fails because your client is asking for more money than the insurance company is willing to pay is that a breach ok so if you assume that you cannot the issue is that that circumvents the washing mediation statute to make an inference of something that occurred during the mediation statute to which i'm not asking you to waive your objection to letting that statement him but now i'm asking you a different question that assumes that we know that the mediation fair here hold because your client was asking for more money question i just don't the problem is with the assumption that that's the issue that i have so when you think that is it this way because i'm trying to set up a question for the other side it seems to me that that itself doesn't cause to breach either i mean your client might have been making an absolutely outrageous demand for ten one million dollars an insurance company said no well we'll give you one hundred thousand there is in the mere fact that she's asking for more money than the insurance company is willing to pay does not tell me that there was evidence so we would say when taken in context it is not because we understand that that statement to be related to the mediation mr frist are sorry  the defendant has taken the position that that that statement was not related to the mediation at all it was pre mediation we still think under the mediation statute that that would still be prohibited because it's in further e of trying to do a mediation so we believe it's completely in unmissable so if we if we if it at the end of the mediation this is a hypothetical question if at the end of the mediation philadelphia had written your client a letter saying here is our response to your demand for coverage we offer you nothing saw in philadelphia denial and therefore it would be a trick of statute where you are you also agree that in addition to a denial if the insurance company states what is identifiable as a final position that that also is enough to trigger the statute right it would depend if that final position was one that was in conflict with what the plaintiff wanted to do right i mean it's something that so that you know because i want dollar as a final position i would say good morning your honour's my name is meta and st and i represent philadelphia insurance company it's our position that the district court correctly ruled that the contractual sit limitation provision in philadelphia's under insured murderess indorsement w valid enforceable and did not violate public policy we also are asking this court to affirm the district court's decision that the that ms galley hand failed to file her lawsuit within one year of when it accrued c specifically says that an insurance company may limit the insurance the statute of limitation provision by by contract as long as the period is at least one year from the time the cause of action a to the insured we wouldn't be here certainly your honour's but that's not the issue the only issue is not is the issue is what's the trigger de jure it's the onset of the one year your position is at the end of the mediation the clock started absolutely even though your client never issued and hasn't to this day issued a denial letter certainly wrecked well i correct you are correct we have not issued a denial letter because this is not a lawsuit that involves coverage or no coverage philadelphia doesn't dispute that mrs delane hand isn't insured and entitled to coverage the issue is there was an impasse there was a lack of a meeting of the minds between philadelphia and ms gala hanne and one at one at one point in time and i mean it's not clear to me how your declaration is admissible evidence but why would an impasse at one point in time when there's no evidence in the record that it's a final impasse why would that put anyone on notice that they now have one year to say so this is a very september of september of two thousand and fourteen she sent a letter demanding the policy limits asking that philadelphia pay her the one million dollars policy limits philadelphia responded within eight days and we're going to evaluate your claim we would like to collect all of your pre imposed medical records we'd like to collect the records from the department of labor and industries because this was a work related injury we'd like to collect we'd like to have ms gallagher and undergo an examination under oath and we would like to have a on the go and i am ten months or eleven months later i'm sorry thirteen months later the parties engaged in the mediation and that was on november th of two thousand and fifteen even if that is not considered one month after the failed mediation ms gillen his legal representative sent a letter or an e mail to philadelphia's counsel saying ms galahad is about to file with the court court will you accept service this is on summary judgment and in summary judgment we construe the facts in the light most favorable to the nonmoving party absolutely the insurer yes the e mail from philadelphia asking for more medical information strongly suggest at least for summary judgment review purposes that your client was still of valuating the insured's claim t once the insured believes that their cause of action has accrued and believes that philadelphia has committed a breach the insured has one year from that date the e mail the e mail response that ms gail hands council sent to philadelphia one month after the failed mediation clearly demonstrate that ms geller hand believed that there was a breach and she had the right to petition the court for relief if she didn't believe that there was a a breach she would have no basis for for seeking judicial intervention but clearly that e mail sounds like this is the traditional we've only been doing this for twenty five years  a battle of the facts they say that your continued effort to find medical information request medical information from the insured meant that the claim was still being evaluated he yet to be denied and the statute had not started what you've just described suggests that there's another way to look at it isn't this what juries resolve all the time i  why because in a when that when that case is simply a disagreement as to the value of over you i am playing so this is not a case where there's it's a coverage dispute where there's literally going to be a denial you know the insurance company accepts the case or they deny that you have coverage this is simply a disagreement about the value of a case and there's going to be a triggering event and it's not going to be identical to a to a coverage case where there's a clear goes out to counsel is there any burden at all to impose on the insurance company a rule that says if you want this period to start running you either have to righted the nile or you have to say this is our final offer i mean that's my experience of what insurance companies do we deny coverage or we'll pay you ten thousand dollars and nothing else what burden is there on the insurance company to have to make the insurance company do something that is reasonably clear to the insured well there is not a burden to do that when the insured is represented by counsel when the insured is represented by counsel and that's been one of the cases that cited by pla in bring him versus sorry bring him morrison versus national general assurance company you know you don't have a burden to tell represented individual what the law is and i would point out that are well the question is what is the law here and do you know we need do you need before you can start that period to run does your client need to do something clear like send a letter  here's our final offer it's not very hard to do is judge message and i understand and judge martinez had also indicated that that might be nice to have happened but he also correctly ruled that in this particular case we viewed that triggers the statute starts to run i'm saying that if if an insured clearly demonstrates as they did in this case that they understood that that there that they had the right to seek judicial intervention by their e mail to philadelphia's council saying we're about to file with the courts will you accept service that clearly demonstrates that they knew they had the right to petition the court for relief so your rule is any time a lawyer sounds a lot of threatening letters saying demand for policy limits that occurred thirteen months later a failed mediation and a month later a letter an e mail to philadelphia's counsel saying we're about to file with the suit we're about to file with the courts will you accept  think i'll be brief so the issue here really is that there is there was no clarity that there was a denial or a our actual payment of less therefore we do not believe the statue of limitations was ever triggered we believe that there's a simple way to have done that which is to the deny coverage or actually make a final offer or to actually pay less i believe that the true rules and very calm are to make a final make a denial or to payless that hasn't happened here further the philadelphia draft of the contract and use the word accrue it could define that as a failed mediation and then we would be here on a different issue perhaps but he did not define that as the crew allowed the courts to find that and finally i think  e finally nd to last i would say that the e mail that the defendant is referring to was actually initially sent by them they were the one that initiated requesting additional information and finally i would say that especially for others and so on