that texas law clearly provides a right of action against an insurance company adjuster under section five hundred and forty one point six of the texas insurance quote for any of the nine listed acts in that section of the code the district court however found that no such right of action existed as related to the very the very acts complained about in the gaskets those became clear nd the court reached we being made sweeping findings regarding its regarding the will of an adjuster generally and limitations on the world of the adjuster generally in order to find no possible why ability on the adjuster's part that is simply inconsistent with the statutory language designated to handle this claim to investigate this claim to evaluate those claims and to a phone or deny coverage for a claim on that basis the court's other find the court simply should have accepted that uncontested fact and there would have been no need for the sweeping findings made by the court and the role of an adjuster to further  enial of the motion to remain and i'm sorry let me make one other point waste did nothing after the denial of this motion to recommit to give the court if you coke as it relates to the substance of this case the due to the fact that there is a waste position in its simplest for one is that there is only it relates to this issue the issue of that that all of these proceedings are are simply parts of a single claim under the energy policy in the district court refused to look at the all the environmental law that gives rise to these policies they refuse to look at this issue even though one cannot tell from looking at the face of the policy yes in making the proposition on the merits of the coverage just butin making the proposition that there's just one plane and we know that from the parallel proceeding regime my difficulty with that is pleads guilty and eventually there are other civil matters i think the beginning civil and the ending civil would have been covered if they exceeded the deductible the issue is do you get to recover defending against the one thousand three hundred and eleven count if i'm right in all sorry but now go ahead you can you can you know i don't mean to be suggesting a result that's important for you know but you may not distinguish that or you may get other questions that are more open to the i'm sorry go ahead what the only thing that would matter is the how the so called criminal finds penalties and assessments like school region would apply that's a very odd exclusion it does exclude all criminal proceedings it doesn't nothing in the coverage clause for cleanup cost eliminates call greed or anything related to criminal proceedings that's particular pain in the record thanks to poor clean up costs having been incurred i think i'm correct it's the j and c and it's the j and b saying you all about three hundred thousand restitution how could  is that you can still appeal it after judgment and the fact that you amended after the court not i read that and it seems to me doesn't mean that that in some non appealable decision i both the order of  appeal i plan to address the issues of tonight one the caterpillar problem we believe that i always manage to have a substantial caterpillar problem because the supreme court's decision in that than two years before the district court entered summary judgment on the duty to defend this court was pending nearly three years in the district court before the district court entered summary judgment on their evading count there was complete diversity of citizenship between all parties remaining in the case at the time the district court issued both those summary judgment ruled that in fact a i g claims the allegedly non does not ask to reinstate the i g claims and i think most importantly it edgy claims is not even a party to this appeal is not represented in this appeal at all and waits is asking the court essentially to reinstate a long dismissed party and then remand became just a core after a judgment in which there was undisputedly us complete diversity a sort of chip between the parties and i want to raise the court's decision in kid versus southwest airlines because i think it makes an important point it goes in some ways towards judge johnson's question in keepers and southwest airlines the court pointed out another reason why the rule of decision that the opinion in kid this court how to recognize the inequity that what he's proposed role would have because at that point when the kids went up on appeal and the question were asked was your subject matter jurisdiction here w the state court went slowly to the fact that a sick refused to pay the claim concluded there was no coverage and refused to pay the claim under those circumstances that the relationship is a contractual one between ways with the insurance company with which you have a contract that's a non valid the whole obligation of an insurance company and in fact what he's a sort of makes our point when having admitted in  of defending those criminal charges to its insurer and the policy doesn't allow the policy that any sick issued importantly and i think judge a consumer action this has a five million dollars per of that self insure policy and you compare them and ask is there a demand for a remedy in this courtroom it would be covered by this policy and in fact until they change this court was very clear in giving guidance to district judges on how circumstances if that kind is not made it should not be implied by a district court in the district court and here we've always asked the same question where the it can't be the a there's no grand jury demand that waste do anything will be covered by the policy they're just investigating a two and a half years later in two thousand and fourteen who finally indicted but again if the district court correctly held the indictment is not a claim the indictment does not demand any particular relief at all whether under building the court should not should not imply a demand for relief that was not there and if there had been a demand for relief in the criminal indictment that would be subject to the exclusion of the policy for cost due to criminal fines criminal penalties in criminal assessments so the cleanup required by the o c would that be covered by the policy right after about a yes if those costs exceeded the five million dollars per event s y r here however it's conceded that they did not and in radically but in the indictment under some circumstances give rise to a claim a defense cost your honor i can't speak to every indictment every flaw it could take an indictment typically does not seek a remedy seeks a conviction and absent a demand for a remedy for the quarter's rule to apply where you would look at  judge's questions there is really my curiosity too because when i think of an indictment and whether or not there's a remedy i do turn to the penalty section of the offense of conviction that tells one available remedies there are which is the questions that i was asking opposing counsel and yet when i then look at the judgment and conviction there is an entry of three hundred thousand dollars paid for cleanup so if you look at the ultimate judgment conviction which would seem to be the claim and you also look at the pre plea letter sent from the department of justice to waste management it also seems to say the one thousand three hundred and eleven count is over your head and could contemplate cleanup costs why not just pay that and then they do plea so why isn't that sort of the scenario you were just just just discussing with judge jones that this criminal case it always contemplated restitution restitution your honor when one ordered in a criminal case on the law the circuit is a criminal penalty and in fact the restitution awarded in this case was awarded as a criminal penalty charge yes but the trouble is the was very clear he didn't reach the exclusion so if you have a clean out loss as a result of the criminal case and judge jones has questions to you i think or wouldn't attorney's fees begin isn't that the essence of their argument i think that is the essence of their argument your honor however where it falters is building does not allow to imagine or imply what believe the claimant white cheek against a particular defendant and you're right your honor the district court did not address the exclusion which i think would fairly clearly apply here and that is an alternative grounds for fi gilding as i see it it is not really a unique statement of texas law it's that you should not imply a demand for relief that could have been brought but was not brought fact that concept in body than the language of a surprise because where there is a claim that seeks a remedy that would be covered by the policy the duty to the front only extends to defending such claims not anything on a related constellation or fracture or anything like that it's just the demand for something that would be covered and that's all you did i don't see the government documents the waste has submitted to the district and of this court change anything even if they are properly considerable in assessing whether there was a unless the court as additional questions they argue is that there is a caterpillar problem here the a caterpillar and kid point out that when a party is amended it's complaining in a way that would create complete so no i don't think that's accurate we very clearly pointed to a calling for failing to admit or deny the coverage within a reasonable time in fact it was thirteen months after we gave know that we know them from looking at the parallel proceeding directed the directive to deal ga and the e p a that require them to sorry but the logic there is it's part of because if the government wants to they can do global parallel proceeding but the factual difficulty is it looks like in all the actual record documents here the government kept saying the opposite several doesn't compromise criminal criminal doesn't come from my subsequent several and then when i look at the ultimate finish to the question sorry the three agreement itself usually in a global plea agreement it's got civil and criminal government attorneys here brief about the criminal exclusions it's basically the notion that when you were interpreting an exclusion it must be clear and unambiguous under texas law and it months the construed and there's actually texas case law that says it is true that there isn't an especially strict construction we have in the workers who could find that we have in the record that here they used this very odd exclusion claims over the last doing to criminal fines penalties or assessment i don't want to i'll keep talking if you guys will look if you're