and the dispute continue to try track against beazley solutions or the risk losing them through a stop in this case these are should be a stop from disclaiming coverage and consent to settle because it failed both regards easily fail to communicate clearly in response to the  rundown on insurance policies this is a communication issue but only both the forfeiture provisions policies of two types of provisions in that one our coverage provisions are ensuring agreement your exclusions its definitions they clearly communicated their plan to bind settlement they clearly communicated their coverage position on mitigation that they felt that they had to find settlement under the mitigation forfeiture provision at risk of being of triggering that it decide this issue but they were deciding coverage they were deciding whether what they were tight checks told them should or should forfeit coverage and they had a duty to forthrightly and quickly as the case maybe give their position on that and that's why we're reason why they thought they had to mitigate the lenders that were involved as part of the buyer group that was assuming that they wanted to close out their loans by the end of the year and responsibilities both for the thai chicks as well as to peace and easily could have easily told the retired checks if you find that settlement we're not going to cover you or stop don't do it we need more time as we all house to litigate but on this forfeiture issue and whether whether or not the retired checks forfeit all coverage they paid four hundred sixty something thousand dollars in warranty unwraps coverage over this communication issue as the insurer who has the burden to insure clear communications our position is that easily should be the one that forfeits its coverage to find not the were touches discord of any question presented beazley with a clear coverage position is an argument they made the first time in their reply they had in a stop all argument in their opening brief but it's not till you get to the repipe brief that we suddenly have they presenting a clear cut which position so i think they've laid by apart from waiver it doesn't make any sense because if you look at the letter which of course with said christmas eve at seven o'clock london time so it's after business hours the letter just says here's notice of the lawsuit or the threatened lawsuit and it says the lenders want to settle and we intend to now at this point we know that they've already worked out all the economic terms of the settlement but they don't tell beazley what the terms are they don't tell beazley that they're planning on settling by december twenty eighth which we also know from the internal discussions the discussions with the other side that that's their plan so and they don't ask for any consent they do mention the mitigation provisions of the policy so clearly the lawyers have  two days later and after the first business kay afterwards mr clarke on behalf of beazley responds and he says we are reserving all of our rights under the policy he calls the retention to section d which is the section that has the consent to settlement provision and he says please give me more information about the settlement now they haven't clearly told him that they were going to argue that the medication provision trumps the consent provision and and excuses them from happy to see consent we know that was their plan now because of their subsequent letter and because that was what they argued in the district court unsuccessfully the district court said no the mitigation provisions of the contract of the policy don't trump the provisions relating to consen settle because you've created your own emergency here by not giving notice in a timely manner and you can then not ask for consent so the letter that settlement so he asked them for everything they sent him that day after business hours which is thursday december twenty seventh they stand him reams of documents they continue to send them on the twenty eighth and in the afternoon of the twenty eighth they say we have to buy the settlement today we're going to send nearly ten million dollars to the other side and again they don't ask for permission they know it's there it's not that they needed us to tell them it's there they've admitted it in it's an undisputed fact that their lawyers are experts on it shouldn't be so they know what they they're hoping to be able to get around it the court says you can't get around it they don't appeal that decision and now they say that we waived it that we tacitly agreed to them not having their obligations and the policy that just doesn't make any sense and we're in agreement what the legal test is the legal test is that for a start is that they have to show plaintiffs have to show by clear and convincing evidence both that these are they had a duty to speak and that they reasonably relied on b c silence to decide that they could go well there's nothing in mr hart letters that indicates that he had a duty to speak he didn't have a duty to explain the policy to these sophisticated people and they certainly the lawyers could not have reasonably relied on his saying i reserve all of my rights as being a waiver of these lease right to require them to seek consent on the consenting adults like to or to raise the other issue which mr frederickson didn't talk about which is there's an alternative basis for a firm and here which is that there was no coverage for the settlement in any event in order to have coverage for the settlement you had to have to be settling a claim for breach of a fundamental warranty under the purchase agreement claims for breach of the general warranties were subject to a one point five million dollars cap and the policy had a one point five million dollars retention so if the claim here is only for breach of these general warranties then there's no contractual obligation on their part to pay anything more than one point five million dollars so there's no coverage and what they were paying for was th pilots and the district court looked at the complaint and the court said you can see what it is the buyers were claiming here they cited six different general warranties and of course suppliers here had every economic incentive to want to find a breach of a fundamental warranty because they had no cap but yet they only claimed breaches of the general warrant she's now pl of say that what they were really complaining about here was poor record keeping and that that the books weren't kept properly but that's not right is the district court recognized a fair reading of the complaint is that the claim is there was a nanny factoring problem it was putting the year riyad into this product that was supposed to have only pure way that was the problem and you can see even from books were right in fact the books were right the profits were right the problem was that what was undisclosed is how you got those profits and that was by putting in a much cheaper ingredient than you could use you could properly use and that's why they went to the general warranties which were things like we're in compliance with their contracts which you can see they were not and the likes we don't have any claims by supplier by our customers against us which you can see they did not we haven't we told you everything that you need to know that's material they didn't have and those resets and i just like to ma mention that they raise negligent misrepresentation in their reply pre again that's race for the first time should be waived but if it's not negligent misrepresentation claims are not covered under this policy has a policy ensure only what they are contractually paid ok and the policy is quite clear that it's just insuring their contractual obligations so if the court has no questions they ask you to friends and judge thank you  slightly admittedly in our reply brief the propositions legal propositions are the same and we don't believe that there were on the issue of negligent misrepresentations of these we argued that in the footnote that the policy didn't the coverage was for warranties and wraps made by the buyers if those representations were made intentionally it wouldn't be covered obviously but if the negligently that's this policy was there i think i heard thing when they communicate with the ensure their risk for putting their coverage they don't have any citations for that proposition and i don't think it would be a good extension of the law on policies like this as far as the books of records of count  in are moving very weak we argued that those are financial records the financial records of the company were not correctly stated illogically that should fall into the wheel house of fundamental war to court of any questions