structural limitations those were the only issues before the court three of the elements of collateral estoppel are not satisfied by structuring and there are several exceptions that would apply in any  policies is markedly differen determines that policy does not apply and policy the contain the exact plain language or follows the form of policy how can that be a different ruling if the pollock the have the language and not including language either above or below the language that you were and that's why i thought it was important to pinpoint exactly the language you are relying upon in your argument ok if that's confusing you want to because we're comparing several different  and if you have an answer i'd like to know where i can look in the record to determin was created by the council for bar construction company which was the corporation for whom all these policies were issued his declaration is included in the record supporting those policies type it is not broader than the indemnity policies the gibraltar policy was a property policy i assume that was your position but i'm having difficulty looking at the record specifically to read it for myself i understand what council tell me in the breaks but i sort of feel an obligation when there's a difference of opinion just go look at myself i understand i have the excerpts of record but i haven't been able to see a dentist occasion of your position or counsel could you tell me specifically where i can look and only know your honor candidly no your honor the excerpts of record in this case come from policies dating back to the eighty's in many cases the policies were incomplete they were the versions used throughout the litigation were if i may say cobbled together as best they could be by brokers by people  construction and to some extent the carriers but i don't believe there is a single document in the excerpts of record in this case that would allow your honor to reach the conclusion can i believe i can help the court your honor would you please in the states or consolidator litigation decided quite some time before this case started before this case there were a number of underlying suits that were brought together consolidated which went to both the underlying why belief and the coverage at that time the same court with all the record in front of it that wasn't going to be a little looked at all the policies was taken up on appeal it was affirmed i was then and i assume you understand that we have to say to oversee what the district court found in this case and that's our obligation and that's why you're here arguably is going to get within the collateral estoppel that we have to determine whether it's the same in form now the access policy of century i assume it's a century policy years around someplace and must have been in the record of the district court or the district court had no basis upon which to make a determination so i assume it's there and i assume the industrial policy is around and i don't understand maybe i'm missing  court look at the exact policies which that court had in front of it but if we want to look at it ask them well is it in the record of the district court policies or that there was a different policy language that would compel a different result and secondly the judge did not base her ruling on this she was correct on the second ground the stats the limitations that this is a dispute and the decision was made by the district court on the basis of collateral is so that was your bird and we have to look to see whether or not the district court was correct that collateral estoppel appl now if the district court was incorrect had the wrong policy holder the wrong language then we would reverse it so it seems to me although she the district court may have had the policies in front of the court at the time decided between these parties had it because there is no coverage but the problem with that statement is that the court had to find that there were similar in form between the primary coverage and the access coverage and that was not decided in the state court so the application of the state court decision relied upon that analysis and what we're trying to do is to find out of the district court was correct in applying collateral estoppel and that has to do with the difference whether they follow the form from the excess carry to the primary now how do we find that out how do we check on the district court to make sure that the district court was correct in that application off the top of my head  ruling on the subject bear the burden to show where the changed language is where is the change policy language all the policy language that was before the court below which has been addressed in the br long proceeding in the sacred coordinated case to bring anything forward to show a different result they got shot they got shot down on appeal judge hamilton gave them every opportunity to bring forward some new evidence to show that a different result should obtain they didn't do it and i don't believe this court has the burden to say well could they have come up with something else after all this was  i don't believe the court has a complete record to do that in the record on appeal there was a complete record in the district court i would if i may vote or delegate my time to co counsel who has a separate arguments to make and simply say we do believe the court was also right on the statute of limitations argument but that's not what the court chose to rule on thank you himself has characterized the hostilities between these parties were was well underway in fact they were suing each other the business dealings had completely fallen apart nonetheless although that was not a basis for the kind of ruling the underlying decisions upon which the collateral stoppel arguments are based apply equally to continental the policy terms in continentals two policies under primary and access are identical to the policy language discussed in by judge lewis in the sacramento spirit court and justice scotland in the opinion affirming that and mr bryant made all the same arguments there based on the same factual record on the same law and those arguments were carefully considered and rejected by that court so i would submit that while we all are not arguing that this court's obligated on collateral sample grounds to follow that opinion those opinions really answer all of the contentions being made by disappoint is mr bryant mr do need to abandon his claims and he's only making claims with regard to the two continental policies not the transcontinental policy which he's also abandoned his claims with regard to because he didn't sue transcontinental that's undisputed and has always basis at this point for claiming coverage under under the continental policies exactly was called a real estate manager for a named insured and i just want to point out and this goes back to the opinions  of both the sacramento court opinion that there are five elements and this is undisputed that he has to establish to show that he's covered and he's got to show he's got to point to an allegation that alleges all five of them can point to one allegation that alleges doubt on that he was a real estate manager for a named insured and the only named insured in the continental policies are the bought into these not any of the later partnerships and entered into deals with mr bryant he has to have been just an allegation against him in his capacity as a named insured so it's not enough that he wasn't that he was a real estate manager he's got to have an allegation against him because of his duties as a real estate manager for a named insured works very importantly it has to have resulted in covered claims these are general liability policies all of these policies they cover bodily injury property damage advertising injury and personal injury and that yeah this is a classic waller case and i'm referring to waller versus truck which is the california supreme court's decision that general liability policies don't cover economic disputes between business parties and it doesn't matter if you got upset because of the dispute in and had emotional damages or even a bodily injury if it results from economic lost their dock cover these parties read each other's throats already and in fact this issue was already before this court in a related way through judge patel decision with regard to the claims brought by the blog interview those are actually the named insured under continental affirm on any basis supported by the record need for all arguments we made below but let me let me turn to the to the written tender offer which was a very simple ground the court said whatever may have happened here with regard whatever coverage may have been involved  here you have to submit written tender per the at some point submit written tender per the insurance contract this is not a late notice case this is a case of no written tender whatsoever and that's what the policy called for california law is clear that this is mr bryant asking for a duty to defend but there's no duty to defend until you tender your claim until you do you ask for it and these policies require that that request be in writing and just to quote the california court of appeal in the truck versus unit guard case a two thousand case quote absent tendered is difficult to understand what if anything you know guard was supposed to do there was never any written tender in this case at one point mr bryant six sixty five and sixty seventy of the insurers excerpts of record are letters by mr bryant to insurance companies and they're called the titles i'm written tender so he knew how to ask he knew how to  written tender to insurance companies when he wanted to claim the tender soul tender written tender in this case that if you want to try to call it that is his lawsuit filed against my clients in the northern district of  california and as a matter of law jack can't be that can't and shouldn't be sufficient written tender when you have a contract that specifies it before use to us you have to submit written tender of a claim give us a chance to evaluate  do whatever we need to do but to prejudice has nothing to do with this it is true under california law late notice claim requires that you that the insurance company before denying the claim supported by the record and was argued below that there tender or not there simply was no coverage for mr bryant under these policies unless the court has any questions i would submit thank you thank you i was reading from memory