counsel and between happy leads to counsel and we'll call upon distortion but volume is is a problem so if you can speak more closely the microphone or with more volume and timbre in your voice whatever works at risk of seeming to yell at gerstein and i think i understand your position with respect to masquerading and know where that term finds its provenance but as far as i know this court has never determined an insurance case or in any case like this that masquerading had occurred so i mean let me let me ask you how the complaints that had been filed and implicate the interests of your client how they're different from the one that we had in reefer right for i guess it would be pretty i can't  well if i said to my love clerks it may depend upon the generation you came from of you know the word refer certainly has some resonance for those of us who came of age in the sixty's but i don't think that's what we're talking about  i believe that report was a close case either way but it used in re for the damages component the court said had already been completely decided in unrelated prior case so literally it was just the coverage case that's the st and that is the point for  the legal claim in this case though i just want to be clear this is st party insurance so when they use the word they want coverage for the losses they claim coverage simply means payment so when you say i want to declare twenty judgment you will coverage that's just short speak money and in this case you don't even have to take my word for it and you don't even have to pay your own award for what your eyes show when your complaints because when they filed general in american jurisprudence we have a law and a rule against claims splitting and it generally means if you've got a grievance against someone related to a transaction or occurrence you have to bring all the  remedies that you can arising out of that same transaction or occurrence and so that's a general rule in american law and then we have to clear toward judgments statutes that say forget that rule you can see good clear project went st and they can come back later any time you want and we aren't going to treat this any other way so at one level why do we even need to reach the masquerading point why can't we just say look we only want declaratory judgment it's an unusual coverage case because normally it's the insurer that wants to seek the d j but here we have an insurer it they want to do it it's strange why not just go for breach of contract it feels so much like claims splitting the torture judgement so it is an exception to our trend they allow it and because they allow it who cares if it's masquerading or not if they want to go piecemeal through a claim doesn't the d j a federal and state allow this and let me just get one additional principle that accompanies all of this and that is the straightforward and well recognized principle that if we recognize as we do they just did nominating a cleaning is something he is not dispositive certainly we can hardly regard a cover sheet is dispositive as well but should we look in looking at howards they give all of these host of goodies to the winner that a d j gives its own set of goodies but it's very very different and that one level though you don't need to win on the masquerading point like so at one level why not just say you know what declared her judgement is an exception to the claim splitting rule strange as that is plaintiff is the master the complaint strange this cover sheet is now let's talk literally thirty two federal court decisions in pennsylvania law that have decided issues here there are two hundred and seventy five opinions  instead of preponderating those other decision i mean as i said to my law kirks a few days ago when we were talking about these cases even want to be in federal court the other side wants to be in state could get it i've been around too long i get it but we have to find a principled way in which we can analyze how each of the three district judges got to the result that they got to so you shouldn't we actually be talking about the factors that those judges considered should have considered and discussed in a robust fashion and determine in that way whether they were right or wrong whether there was an abuse of discretion i'm happy to do that and you answer is there was as you as i'm sure the court is well aware neither of the trial courts nor the allen ellie's have given any discussion of most of the reef because this involves contract interpretation that's all and laws in pennsylvania and new jersey all is well established how to construe a contract is just applying the literal words of the contract using stablished principles of law there is nothing novel that requires special intervention in the state courts and the reason i got ahead of myself just nothing when i mention all the cases there are any i just think rather than at the federal level no i think most courts have recognized that it's one thing to talk about specific areas where insurance companies are regulated and maintaining reserves and there are certain other requirements that their claim that regulation that is that we have an abiding responsibility to exercise our properly invoke jurisdiction and i don't think there's a question here or dispute that there is properly diversity jurisdiction so i understand wright's point to be one essentially a public policy of state policy but it seems to me that one important aspect of this case a very important aspect of this case for us is in view of our that were identified in ca and the basis for determinations by judges to abstain so quickly if you will and again i thought i'd like to focus on some of the factors here and i'd like all of counsel to do that because i do have some doubts as to whether in some of the even all of the cases the factors were adequately and fulsomely addressed so that was not i was in a different case at st all right to reserve one minute of my time for a bottle was just addressing district court decision should also be reversed for the reason that it abused its discretion and understanding from hearing this case plainly when two different decisions are reached in identical case there has been an arbitrary result and the court has abused its discretion at least twenty courts in the district of new jersey and more than thirty federal district courts in pennsylvania have reached these exact claims on the merits including in solely declaratory action dismissed those cases and have been willing to exercise jurisdiction but that does not rest on like a false premise in some ways it as soon as that absent uniformity there must be an abus so there's many many many areas that district courts have discretion they can set the time period for discovery in some one hundred and twenty dollars days some like one hundred and eighty days some like one hundred and fifty but the fact that they reach all different results for very very very similar cases doesn't mean that any of them have abused their discretion so it strikes me that your argument well your statistics are overwhelming that's the strong part of your argument it's not that the uniformity a lack of uniformity must therefore be an abuse of discretion abuse of discretion contemplates to two separate opposing results can both be within the permissible bounds of discretion while two different results could be within the bounds here the question is specific to the reefer factor which the district court found was the controlling factor here well many decisions throughout the federal courts including by the same district court judge illustrate plainly there was no unsettled or novel question of state law here instead what we have as mr christie mentioned is a plain straightforward application of unambiguous contract language to the facts before the court and the court could not the district court below and the pelleas could not claim that those principles of law have changed in the past six months looking at the decisions that have been issued again including by the same district court judge only illustrates this they're resolved on the statement of law i mean i mean let me let me just push back because i think your statement is again too broad it's it's perfectly fine for in uncertain state law question to be later resolved so so so it can be that at the time of one ruling the question was unresolved at the state level and a subsequent point in time through an action of the highest court of a state or otherwise that uncertainty has evaporated but again i think you've pushed too hard because i think the point that you need to make is was there uncertainty at the time of these rulings not is there uncertainty today that's correct and the answer is that there was no uncertainty at the time of the ruling by the district court below re manning this case what the rulings that have been issued since that and the overwhelming consensus that there are no claims on the merits here illustrate is that fact that these claims were not were settled these legal concepts were settled at the time of this decision because none of the decisions resulting these claims have been able to identify or have identified close questions of law instead they was all the cases in front of them based on pure blackletter principles that are long settled within new jersey and pennsylvania state law and plainly this is the case because the district court judge here just a few weeks ago in the casino beach pier case stated and i quote that case does not involve unsettled questions of state law rather and again i quote resolution of this dispute involves a straightforward interpretation of the policies language those observations let let me let me stop you there and this is for shadows the interests that i have been inquiring of issue or issues what is it that is supposedly unique here because it seems clear to me that this panel should be concentrating on questions of law on legal issues and therefore the highly unusual even unique nature of this virus of this pandemic is not really what we ought to be focusing on that instead we ought to be focusing on an issue of issues and that those issues necessarily requires to focus on the language of this exclusion provision within the contract is is is that is that your position i mean is that one which should be our focus yes that's precisely our position but only unique circumstance but the district that is the question here the question as i mentioned that is before this court is whether an unambiguous and straightforward exclusion applies to the facts before it and that's a question that federal courts are well equipped to handle and there is no reason why the state courts are better suited to address similarly there there is nothing neat about the existence generally of exclusionary provisions in liability insurance contracts right you know there is not in this case  our and in fact the courts are called upon to address those issues have been i haven't made a global search of the opinions but i know they exist that i correct in that yes they many of them exist many of them construing this precise exclusion at issue in this case including like i mentioned but many decisions from within the circuit have done so based on the long subtle principle that the plain language of the exclusion applies to the facts that are covered with then the issue is the language of the policy rather than the issue of whether the damage here was caused by an order of the state government as opposed to the clause that virus i gather that that's now that's the balance of the two issues and you're saying that that there is no bullet and the claim that the damages here were caused by the state order as opposed to being caused by her iris or whether the last claim falls within the scope of the exclusion is decided by the exclusions language and here the exclusion states that it applies to any loss caused directly or indirectly by any bias regardless of any subsequent causes that contributed and the twenty courts within the district of new jersey have applied this identical language and ruled that regardless of whether the claimed cause of lost is the virus itself or the orders that were issued in direct to the virus the virus exclusion plainly controls so once again we come back to the question of does unambiguous plain language of the exclusion apply in this case which is a long settled bustin of state law that the federal courts are well equipped to address well i is is growing in your favor what's the problem with having these cases in the state court rather than the thing who or the problem with having these cases in the state court is that as this case is brought pursuant to the diversity jurisdiction where embargoes and out of state litigant having claims brought against it by in state what again it has a constitutionally protected interest to a federal forum and indicating that interest i think is what is spoken to in the masquerading point but it is also directly relevant to the abuse of discretion from the district court that here and guard and motorists have and should have access to the federal courts to hear these claims as as is as is protected by the constitution honor judge rock really small my thunder a little bit by saying d what's actually going on in the state of new jersey sometimes i wonder when i prepare for this argument whether i want to win or i want to lose  judge heard in mercer county i've literally grabbed each and every motion to dismiss my office pads the cases we took on we we took a chance on behalf of you business owners and judge hart and i respect man all of the three district judges was was a correct exercise their discretion under our jurisprudence my colleagues may have different focuses here but i'm curious to follow up on a question i previously asked you or your adversary just one of them this is what is unique here and what issue or issues should we be focusing on because it seems to me that if we have diversity jer's diction properly being exercised that in the last you or a district judge can and can draw our attention to some bases for a state court applying different rules of interpretation the language contained in this exclusion an answer to that question a clear answer to that question it's not merely the infection it's not merely the effect of the virus itself as a virus but the language would permit would it not other causative factors such as government regulation let me try to be very forthright with you i'm going to ask you about what i think is the weakest part or one of the weakest part of your case and and that is that so many of these take place in the presence of parallel state proceedings and there's this notion of federal courts don't want to get in the way of something that state courts or state administrative agencies are already doing whether it's a criminal matter whether it's an administrative matter whether it's a novel a complex issue would rather let them get st crack at it when they're spare were low proceedings and i don't think there's any dispute that there's not parallel proceedings proceedings really really hurts your case i think i think that's your biggest weakness as it is i tee it up and i want to give you a shot at kind of speaking to that point because maybe maybe i've got a blind spot in so so so so let me just interrupt and let me see if if i can kind of just in capsulated what your point is is i hear you what you're saying is there's not technically a parallel state proceed all of the interests that would be accounted for by the parallel state proceed in fact or are present here due to the wealth of other state point and one that occurred to me the other day and in fact and it shows you how dependent i am on my law clerks from my recollection because i had told them that i was going to come out of the box and ask right away at the beginning of that if you really really really want to be in state court why don't you come right out and ask his st of all you know certify this question because the real question that has to be certified is the underlying legal issues there are the issues we  question of state law and the bar in federal court they usually aren't shy about about asking for some degree of certification now there's a whole dynamic there that might not make that always the most successful approach but putting that aside the ask is usually made well i would only ask that asking becomes a little bit more realistic to me  not my question more obvious when there has been a petition to the supreme court exercise its king's bench authority may be a nudge from us who have some involved the supreme court of pennsylvania will get involved in whether or not there he's coverage so were the losses under policies issued in pennsylvania to pennsylvania residents because it is it is an overwhelming issue affecting thousands of once those questions have been resolved by state court authorities then there's no problem with cases like these being in federal court if they've been properly removed if they properly triggered diversity  diction so this is kind of a you know sort of time period where we don't have an answer someday we will probably and at that point in time it's too late there's no question then that federal courts this can be in federal court but but maybe at the time he's decisions were but let me just let me just ask you one other question and this is my final question for you and it relates to the notion that chief judge smith was referring to there are so many supreme court cases that say federal courts have virtually unknown flagging obligation to hear cases within their jurisdiction and that kind of makes sense because federal courts are courts of limited jurisdiction and so on litigants climb over that limited jurisdiction hurdle courts there's a production and pledging obligation to hear those cases and so when we look at all of these factors we have to look at those we can't just forget about our virtually unflagging obligation and go straight to the factors that partially unflagging obligation is a gradient upon which we were view of these factors and it makes it a lot declaratory judgment action is different then the legal work compensatory action and they are different and they are separate and distinct and here we only have a declaratory judgment action and that's the group court cases in the colorado river cases they talk about unflagging  ation however there is an exception and the exception is where there is a declaratory judgment action and it's discretionary and it isn't a rare exception it's a very narrow exception it is it is an it but but this falls squarely within that never exception because it is a declaratory judgment action seeking only declaratory d there is no request for specific damages there is no request for a specific amount of money in this case it's for coverage parallel proceeding and here there is not mr ferrara said that the other cases between other parties present the same considerations as a parallel proceeding but this court in the brill hart case from the supreme court identify those questions as to witness interference with ongoing proceedings between the same parties and efficient judicial review allocation of resources those questions are not present here where there is no parallel proceeding the district court identified the rd and the th factor as weighing as overcoming the presumption in favor of jurisdiction the rd factor which we've already addressed plainly did did not the fact that the district court could not identify a novel question of state law shows that and mr haggerty's explanation of the question to be certified to the supreme court of whether or not there is coverage under the language of the policy further illustrates that thank you mr and thank you all of counsel these cases we all know have proliferated will know their rise out of considerable difficulties both social economic  economic and then who for other reasons as well not least of which is i have a hell of a time finding a decent place to eat when i'm in philadelphia these days so i do hope that