WEBVTT
1
00:00:00.000 --> 00:00:03.240
SJC 13535.
2
00:00:03.240 --> 00:00:06.090
Zurich-American Insurance Company et al
3
00:00:06.090 --> 00:00:09.870
versus Medical Properties Trust Inc et al.
4
00:00:09.870 --> 00:00:11.073
Okay. Attorney Page.
5
00:00:18.030 --> 00:00:19.560
Good morning, your Honors. May I please the court?
6
00:00:19.560 --> 00:00:21.150
I'm Creighton Page on behalf of one
7
00:00:21.150 --> 00:00:23.100
of the appellant's medical properties trust,
8
00:00:23.100 --> 00:00:25.203
which I'll refer to today as MPT.
9
00:00:26.670 --> 00:00:28.800
Your Honors, in the question that's been certified
10
00:00:28.800 --> 00:00:30.960
to this court by the First Circuit,
11
00:00:30.960 --> 00:00:33.695
there is one critically important word
12
00:00:33.695 --> 00:00:36.660
that establishes the analytical framework
13
00:00:36.660 --> 00:00:38.580
for how to answer that question.
14
00:00:38.580 --> 00:00:41.790
And that word is unambiguously.
15
00:00:41.790 --> 00:00:44.520
The certified question asks whether rainwater
16
00:00:44.520 --> 00:00:46.770
that lands and collects on a building roof,
17
00:00:46.770 --> 00:00:48.990
one or more stories above the ground,
18
00:00:48.990 --> 00:00:52.320
unambiguously constitutes surface water
19
00:00:52.320 --> 00:00:54.030
under this court's prior precedent
20
00:00:54.030 --> 00:00:55.920
and for purposes of the insurance policy
21
00:00:55.920 --> 00:00:58.011
that's been issued to MPT.
22
00:00:58.011 --> 00:01:00.000
Now, each of the parties here
23
00:01:00.000 --> 00:01:02.730
thinks that its interpretation of surface waters is correct.
24
00:01:02.730 --> 00:01:04.560
We obviously think we have the better argument.
25
00:01:04.560 --> 00:01:06.957
The certified question should be answered in the negative.
26
00:01:06.957 --> 00:01:10.290
No doubt Zurich thinks it has the better argument too.
27
00:01:10.290 --> 00:01:12.600
But in order for Zurich's interpretation
28
00:01:12.600 --> 00:01:15.210
of surface waters to be adopted,
29
00:01:15.210 --> 00:01:18.390
it's not enough for it just to have a good argument
30
00:01:18.390 --> 00:01:20.010
or even the better argument.
31
00:01:20.010 --> 00:01:22.860
That's not enough to establish that Zurich's interpretation
32
00:01:22.860 --> 00:01:26.820
of surface waters is unambiguously the correct one.
33
00:01:26.820 --> 00:01:29.310
But we always have two sides
34
00:01:29.310 --> 00:01:32.490
and everybody's saying mine is clear as day.
35
00:01:32.490 --> 00:01:34.470
That doesn't make it unambiguous
36
00:01:34.470 --> 00:01:36.630
just because there's two interpretations
37
00:01:36.630 --> 00:01:38.718
that the parties are vying for.
38
00:01:38.718 --> 00:01:39.807
Of course not, your Honor.
39
00:01:39.807 --> 00:01:42.720
And this court has held that on a number of occasions
40
00:01:42.720 --> 00:01:44.580
that just because there is a dispute
41
00:01:44.580 --> 00:01:47.070
about the meaning of the words as between the parties,
42
00:01:47.070 --> 00:01:49.879
that by itself is not enough to make it ambiguous.
43
00:01:49.879 --> 00:01:52.080
Okay, so how does your case differ
44
00:01:52.080 --> 00:01:54.420
from all of those others?
45
00:01:54.420 --> 00:01:58.050
Because where there's just a dispute
46
00:01:58.050 --> 00:01:59.610
and one side's dispute,
47
00:01:59.610 --> 00:02:01.380
sorry, one side's competing interpretation
48
00:02:01.380 --> 00:02:04.530
is determined to be not a reasonable one, right?
49
00:02:04.530 --> 00:02:06.360
So the way that this court has described
50
00:02:06.360 --> 00:02:09.900
what it means for policy wording to be unambiguous
51
00:02:09.900 --> 00:02:11.670
is that it is not susceptible
52
00:02:11.670 --> 00:02:14.520
of more than one reasonable interpretation.
53
00:02:14.520 --> 00:02:17.640
Reasonably intelligent persons would not disagree
54
00:02:17.640 --> 00:02:20.130
as to which of the competing interpretations
55
00:02:20.130 --> 00:02:21.330
is the proper one.
56
00:02:21.330 --> 00:02:25.290
There has to be no doubt as to the meaning of the words,
57
00:02:25.290 --> 00:02:27.690
because doubts as to the meaning of the words
58
00:02:27.690 --> 00:02:29.300
are resolved in favor of the policyholder.
59
00:02:29.300 --> 00:02:32.190
Do you think your interpretation of surface water
60
00:02:32.190 --> 00:02:35.343
is not the only reasonable one?
61
00:02:37.680 --> 00:02:40.230
Our case, your Honor, has always been
62
00:02:40.230 --> 00:02:42.840
that taking the words that this court used
63
00:02:42.840 --> 00:02:45.990
to define surface waters in its prior precedent
64
00:02:45.990 --> 00:02:48.390
and giving them a straightforward application
65
00:02:48.390 --> 00:02:51.180
to the facts of what happened when the rainwater landed
66
00:02:51.180 --> 00:02:53.190
and collected on the roof and infiltrated
67
00:02:53.190 --> 00:02:54.783
the building from above,
68
00:02:55.710 --> 00:02:57.210
our case has always been
69
00:02:57.210 --> 00:02:58.620
that there is a straightforward
70
00:02:58.620 --> 00:03:00.780
and unambiguous way of applying those
71
00:03:00.780 --> 00:03:02.583
in order to rule in our favor.
72
00:03:03.660 --> 00:03:06.093
What is the precedent that you're relying on?
73
00:03:07.619 --> 00:03:10.590
In defining surface waters?
74
00:03:10.590 --> 00:03:11.423
Exactly.
75
00:03:11.423 --> 00:03:12.870
You referenced in your answer to me
76
00:03:12.870 --> 00:03:17.870
that there's this straightforward precedent from the SJC.
77
00:03:17.910 --> 00:03:19.260
What is that?
78
00:03:19.260 --> 00:03:20.093
Sure.
79
00:03:20.093 --> 00:03:23.160
There are three cases from this court
80
00:03:23.160 --> 00:03:25.020
that have addressed the meaning of surface waters.
81
00:03:25.020 --> 00:03:27.840
Two of them more recently in the insurance context,
82
00:03:27.840 --> 00:03:30.630
in discussing what that term means
83
00:03:30.630 --> 00:03:32.121
in a proper policy-
And they are?
84
00:03:32.121 --> 00:03:34.500
Boazova, Surabian.
85
00:03:34.500 --> 00:03:36.210
And in each of those two cases,
86
00:03:36.210 --> 00:03:39.597
they took the definition of surface waters from DeSanctis.
87
00:03:39.597 --> 00:03:43.380
And the way the court defines surface waters in those cases
88
00:03:43.380 --> 00:03:45.570
is the same in each instance.
89
00:03:45.570 --> 00:03:49.349
They are waters from rain, melting snow, springs,
90
00:03:49.349 --> 00:03:51.465
a few other natural sources
91
00:03:51.465 --> 00:03:55.950
that lie or flow on the surface of the earth
92
00:03:55.950 --> 00:03:58.140
and naturally spread over the ground,
93
00:03:58.140 --> 00:04:01.230
but do not form part of a natural watercourse or lake.
94
00:04:01.230 --> 00:04:03.090
That's the way the court defined it.
95
00:04:03.090 --> 00:04:04.890
And so the question here is
96
00:04:04.890 --> 00:04:08.220
do those words that this court has used to define
97
00:04:08.220 --> 00:04:10.200
what constitutes surface waters,
98
00:04:10.200 --> 00:04:12.330
does that describe rainwater
99
00:04:12.330 --> 00:04:14.940
that lands on a building roof,
100
00:04:14.940 --> 00:04:18.180
dozens, perhaps hundreds of feet above the ground
101
00:04:18.180 --> 00:04:19.860
and becomes trapped there
102
00:04:19.860 --> 00:04:23.400
and which never lies or flows on the surface of the earth
103
00:04:23.400 --> 00:04:25.399
and never naturally spreads anywhere
104
00:04:25.399 --> 00:04:27.543
other than the roof on which it landed?
105
00:04:28.380 --> 00:04:30.933
And our position is that the answer to that is,
106
00:04:31.860 --> 00:04:34.140
we think, unambiguously, no.
107
00:04:34.140 --> 00:04:36.360
But again, the reason why I started with this
108
00:04:36.360 --> 00:04:37.630
as being the proper analytical framework-
109
00:04:37.630 --> 00:04:39.990
Well, the First Circuit obviously didn't,
110
00:04:39.990 --> 00:04:42.570
in it's, what, it's Fidelity case
111
00:04:42.570 --> 00:04:44.880
thought the opposite, right?
112
00:04:44.880 --> 00:04:48.180
I wouldn't necessarily agree with that, your Honor.
113
00:04:48.180 --> 00:04:50.190
In the Fidelity v. Nova case,
114
00:04:50.190 --> 00:04:52.920
and I'm sure you will have seen this from the briefing below
115
00:04:52.920 --> 00:04:55.590
and what transpired in our interlocutory appeal
116
00:04:55.590 --> 00:04:56.910
to the First Circuit,
117
00:04:56.910 --> 00:04:58.560
but that case was actually decided
118
00:04:58.560 --> 00:05:01.860
on completely different policy wording.
119
00:05:01.860 --> 00:05:04.680
It was decided on the basis that there was coverage under
120
00:05:04.680 --> 00:05:08.400
that policy for provision that expressly granted coverage
121
00:05:08.400 --> 00:05:10.440
for drain overflow
122
00:05:10.440 --> 00:05:14.490
and that a rain limitation in that policy did not apply.
123
00:05:14.490 --> 00:05:16.500
That's why the policy holder won in that case
124
00:05:16.500 --> 00:05:18.510
and why the policy holder was entitled
125
00:05:18.510 --> 00:05:21.630
to its complete judgment without any deductible.
126
00:05:21.630 --> 00:05:26.630
The question of whether or not the rain on the roof
127
00:05:26.730 --> 00:05:28.950
in that case was surface water
128
00:05:28.950 --> 00:05:30.330
is something that the district court
129
00:05:30.330 --> 00:05:32.850
had characterized it as such, sua sponte.
130
00:05:32.850 --> 00:05:34.890
When it came up on appeal,
131
00:05:34.890 --> 00:05:39.855
that was not contested by the insurer there.
132
00:05:39.855 --> 00:05:42.870
The First Circuit said that in its opinion.
133
00:05:42.870 --> 00:05:44.580
And the actual question that was presented
134
00:05:44.580 --> 00:05:46.770
there on the first circuit in that case was
135
00:05:46.770 --> 00:05:49.860
where the water on the roof has been determined
136
00:05:49.860 --> 00:05:50.970
to be surface water,
137
00:05:50.970 --> 00:05:52.680
because the District Court said so.
138
00:05:52.680 --> 00:05:54.952
Do the unambiguous terms of this policy
139
00:05:54.952 --> 00:05:58.410
provide coverage for that or do they exclude it?
140
00:05:58.410 --> 00:06:00.720
And the District Court's error is that it had overlooked
141
00:06:00.720 --> 00:06:03.360
an endorsement that would provide coverage for that.
142
00:06:03.360 --> 00:06:07.500
But that was very much a secondary part of that case
143
00:06:07.500 --> 00:06:10.800
and not one that impacted the judgment in any way.
144
00:06:10.800 --> 00:06:12.510
The parties did not go back and forth
145
00:06:12.510 --> 00:06:14.340
citing the same arguments we're presenting here,
146
00:06:14.340 --> 00:06:15.830
for example.
But we also have Judge Saris
147
00:06:15.830 --> 00:06:20.830
in this case who carefully sort of pieces this together
148
00:06:21.000 --> 00:06:25.800
and says that it does deal with the roof.
149
00:06:25.800 --> 00:06:27.810
And her first, at least her original
150
00:06:27.810 --> 00:06:30.930
sort of conceptualization of this
151
00:06:30.930 --> 00:06:34.113
is our precedence do extend to the roof.
152
00:06:36.600 --> 00:06:40.440
I think what Judge Saris was really saying in her order,
153
00:06:40.440 --> 00:06:43.770
Judge Saris thought that she was bound by the Nova decision.
154
00:06:43.770 --> 00:06:46.877
She thought that the First Circuit had already addressed
155
00:06:46.877 --> 00:06:49.815
the question that we have here and reached a-
156
00:06:49.815 --> 00:06:51.510
So it wasn't quite as simple
157
00:06:51.510 --> 00:06:54.210
to distinguish as you just said then, right?
158
00:06:54.210 --> 00:06:57.000
Well, so she thought,
159
00:06:57.000 --> 00:06:59.130
and this is what she said during the oral argument
160
00:06:59.130 --> 00:07:01.507
on the summary judgment hearings in that case,
161
00:07:01.507 --> 00:07:02.730
"I can't just go to the First circuit
162
00:07:02.730 --> 00:07:04.281
and say that they're wrong."
163
00:07:04.281 --> 00:07:07.350
And then she said, "I acknowledge the force
164
00:07:07.350 --> 00:07:08.370
of what you have to say."
165
00:07:08.370 --> 00:07:09.427
This is in the transcript,
166
00:07:09.427 --> 00:07:14.130
"About what the SJC has said in defining surface waters."
167
00:07:14.130 --> 00:07:17.700
So she said, what she ultimately did is ruled against us
168
00:07:17.700 --> 00:07:18.660
in favor of Zurich,
169
00:07:18.660 --> 00:07:22.080
but recognizing how close of a call it was
170
00:07:22.080 --> 00:07:24.240
that it was not clear,
171
00:07:24.240 --> 00:07:26.430
sent it to the First Circuit for interlocutory appeal,
172
00:07:26.430 --> 00:07:28.680
and now the First Circuit has clearly said
173
00:07:28.680 --> 00:07:31.170
that they don't think that Nova
174
00:07:31.170 --> 00:07:33.120
is dispositive of the question,
175
00:07:33.120 --> 00:07:35.160
otherwise they would've gone back
176
00:07:35.160 --> 00:07:36.720
to Judge Saris and said so
177
00:07:36.720 --> 00:07:38.760
instead of certifying the question here.
178
00:07:38.760 --> 00:07:40.500
So I don't think we should treat Nova
179
00:07:40.500 --> 00:07:43.410
as being something that is dispositive of the case.
180
00:07:43.410 --> 00:07:44.430
Certainly not that.
181
00:07:44.430 --> 00:07:45.900
I don't think it's even instructive,
182
00:07:45.900 --> 00:07:47.029
because the question there was so different.
183
00:07:47.029 --> 00:07:48.930
Can I ask a more basic question?
184
00:07:48.930 --> 00:07:51.540
'Cause the amicus briefs describes sort of
185
00:07:51.540 --> 00:07:54.870
these catastrophic consequences of both positions.
186
00:07:54.870 --> 00:07:58.500
So rainwater in our roofs.
187
00:07:58.500 --> 00:08:02.340
Okay, so everyone, we have one amicus brief saying
188
00:08:02.340 --> 00:08:04.980
that normally every insurer thinks
189
00:08:04.980 --> 00:08:08.790
their house is covered against a leaky roof.
190
00:08:08.790 --> 00:08:13.080
Is that your sense that's correct, that leaky roofs...
191
00:08:13.080 --> 00:08:14.850
What's the provision in the insurance
192
00:08:14.850 --> 00:08:17.013
that covers leaky roofs if it's not?
193
00:08:18.540 --> 00:08:19.680
I just wanna make sure I understand
194
00:08:19.680 --> 00:08:21.810
the background assumptions well.
195
00:08:21.810 --> 00:08:22.950
Sure. Sure, your Honor.
196
00:08:22.950 --> 00:08:24.960
And I guess the question would be,
197
00:08:24.960 --> 00:08:27.060
is there a provision in the policy
198
00:08:27.060 --> 00:08:30.240
that takes away coverage for rainwater intrusion
199
00:08:30.240 --> 00:08:31.073
through a roof?
200
00:08:31.073 --> 00:08:32.790
So what's the provision that covers it?
201
00:08:32.790 --> 00:08:37.529
So the normal property insurance is covering my leaky roof
202
00:08:37.529 --> 00:08:40.020
when it's pouring out there.
203
00:08:40.020 --> 00:08:42.068
And these new rainstorms we're getting
204
00:08:42.068 --> 00:08:47.040
like we're Noah's Ark, it's coming down nonstop.
205
00:08:47.040 --> 00:08:48.780
So we're covered,
206
00:08:48.780 --> 00:08:50.610
and you have to exclude it through
207
00:08:50.610 --> 00:08:53.490
this flood insurance provision.
208
00:08:53.490 --> 00:08:55.980
I'm just trying to make sure I understand the assumptions
209
00:08:55.980 --> 00:08:59.280
so we don't accidentally create some problems here.
210
00:08:59.280 --> 00:09:00.113
Sure.
211
00:09:00.113 --> 00:09:02.610
The standard homeowners policy,
212
00:09:02.610 --> 00:09:05.460
as well as the standard commercial property policy
213
00:09:05.460 --> 00:09:07.800
includes a few different provisions that are relevant
214
00:09:07.800 --> 00:09:10.030
to this question that you're asking now,
215
00:09:10.030 --> 00:09:12.900
one of which is the so-called water exclusion,
216
00:09:12.900 --> 00:09:15.660
which includes the surface water piece of that exclusion,
217
00:09:15.660 --> 00:09:19.020
which is what was at issue in Boazova and Surabian.
218
00:09:19.020 --> 00:09:20.730
The next one that's critically important
219
00:09:20.730 --> 00:09:23.520
is what we refer to as the rain limitation.
220
00:09:23.520 --> 00:09:26.250
And the rain limitation in the standard policy,
221
00:09:26.250 --> 00:09:30.180
it takes away coverage for damage to the interior
222
00:09:30.180 --> 00:09:33.990
of the building that is caused by rain or snow,
223
00:09:33.990 --> 00:09:36.260
and sometimes some other causes, sleet,
224
00:09:36.260 --> 00:09:41.260
unless the exterior of the property
225
00:09:41.400 --> 00:09:45.340
was first damaged by a covered cause of loss
226
00:09:46.174 --> 00:09:49.044
or unless, I think it was,
227
00:09:49.044 --> 00:09:51.540
it's the circumstance that deals with ice dams,
228
00:09:51.540 --> 00:09:53.790
if it's a function of the melting snow
229
00:09:53.790 --> 00:09:55.890
or ice that comes in.
230
00:09:55.890 --> 00:09:57.840
Now, what the rain limitation doesn't say,
231
00:09:57.840 --> 00:10:00.270
it doesn't say we exclude coverage
232
00:10:00.270 --> 00:10:02.370
for damage caused by rain, period.
233
00:10:02.370 --> 00:10:05.670
Rain is not an excluded cause of loss
234
00:10:05.670 --> 00:10:08.340
to the exterior of the property.
235
00:10:08.340 --> 00:10:10.050
And there are cases, not in Massachusetts,
236
00:10:10.050 --> 00:10:11.790
but in other jurisdictions that's so held.
237
00:10:11.790 --> 00:10:15.450
So if the rain damages the roof of your building,
238
00:10:15.450 --> 00:10:18.411
for example, as there is evidence here that it did,
239
00:10:18.411 --> 00:10:21.120
and then the rain comes in
240
00:10:21.120 --> 00:10:23.313
and damages the interior of your building,
241
00:10:24.420 --> 00:10:26.190
then yes, there is not an exclusion
242
00:10:26.190 --> 00:10:28.380
in the standard policy that takes that away,
243
00:10:28.380 --> 00:10:32.130
unless you were to consider the rain on your roof
244
00:10:32.130 --> 00:10:33.260
to be surface water,
245
00:10:33.260 --> 00:10:34.590
in which case it would come within
246
00:10:34.590 --> 00:10:36.060
the surface water exclusion.
247
00:10:36.060 --> 00:10:39.450
That's why the decision on this certified question reaches
248
00:10:39.450 --> 00:10:42.870
so far beyond just the parties to this case.
249
00:10:42.870 --> 00:10:46.560
Now all of a sudden, if accumulation of water on a roof-
250
00:10:46.560 --> 00:10:49.560
I assume he's gonna stand up and say, no, that's not...
251
00:10:49.560 --> 00:10:53.880
You need to have this kind of giant puddle effect for it.
252
00:10:53.880 --> 00:10:56.790
Normal rain that leaks through the roof
253
00:10:56.790 --> 00:10:59.490
is not gonna be what we're dealing with.
254
00:10:59.490 --> 00:11:00.900
It's when it's like this
255
00:11:00.900 --> 00:11:03.150
where you get basically a swimming pool
256
00:11:03.150 --> 00:11:04.651
on top of your house.
257
00:11:04.651 --> 00:11:06.720
If my brother stands up and says that,
258
00:11:06.720 --> 00:11:08.460
it will be very different from the position
259
00:11:08.460 --> 00:11:10.344
that Zurich has taken in its briefs,
260
00:11:10.344 --> 00:11:13.650
which is quite clearly that they believe
261
00:11:13.650 --> 00:11:16.350
that as soon as rainwater hits anything,
262
00:11:16.350 --> 00:11:18.630
whether it's the ground or any other surface
263
00:11:18.630 --> 00:11:21.030
for that matter, that it becomes surface water.
264
00:11:21.030 --> 00:11:23.610
That's the position that they've taken.
265
00:11:23.610 --> 00:11:25.020
Now, we disagree with that.
266
00:11:25.020 --> 00:11:26.970
And if rainwater accumulation on a roof,
267
00:11:26.970 --> 00:11:29.850
just to complete your question
268
00:11:29.850 --> 00:11:31.350
about what are the consequences here
269
00:11:31.350 --> 00:11:32.280
for the standard policy,
270
00:11:32.280 --> 00:11:34.710
if that's now surface water,
271
00:11:34.710 --> 00:11:39.630
then so too is snow accumulation on the roof, ice dams.
272
00:11:39.630 --> 00:11:42.090
I don't know, I've dealt with ice dams before
273
00:11:42.090 --> 00:11:44.880
and had to go to my insurer to get coverage for that.
274
00:11:44.880 --> 00:11:46.860
I don't think there's any dispute that damage caused
275
00:11:46.860 --> 00:11:48.780
by ice dams is typically covered.
276
00:11:48.780 --> 00:11:51.810
I thought the policy wasn't that surface water
277
00:11:51.810 --> 00:11:55.353
was excluded, but that there was a limit, a cap.
278
00:11:56.910 --> 00:11:58.890
I'm sorry, in which case are you referring to?
279
00:11:58.890 --> 00:12:01.333
Yours? (laughs)
280
00:12:02.190 --> 00:12:03.510
Maybe you can repeat the question.
281
00:12:03.510 --> 00:12:05.850
I think I missed the beginning.
282
00:12:05.850 --> 00:12:08.250
So my understanding,
283
00:12:08.250 --> 00:12:10.600
and of course you know more about this than me,
284
00:12:11.520 --> 00:12:16.520
was that there was a cap on the coverage for surface water,
285
00:12:16.710 --> 00:12:19.020
not that it was excluded.
286
00:12:19.020 --> 00:12:20.670
You're right, your Honor.
287
00:12:20.670 --> 00:12:24.450
So this parade of horribles about ice dams and whatnot
288
00:12:24.450 --> 00:12:26.790
would have to fall within the cap
289
00:12:26.790 --> 00:12:30.279
if we concluded that such things were surface water.
290
00:12:30.279 --> 00:12:33.270
Justice Kafker's question was about the consequences
291
00:12:33.270 --> 00:12:35.280
under the standard homeowner's policy,
292
00:12:35.280 --> 00:12:37.230
the standard commercial property policy,
293
00:12:37.230 --> 00:12:40.080
which this is not one of those, right?
294
00:12:40.080 --> 00:12:42.210
But I have the same question Justice Wendlandt does,
295
00:12:42.210 --> 00:12:44.250
'cause it is sub limit, right?
296
00:12:44.250 --> 00:12:45.540
That's what this is called.
297
00:12:45.540 --> 00:12:48.360
This is about how to construe the sub limit
298
00:12:48.360 --> 00:12:50.637
in the policy for damage caused by flood.
299
00:12:50.637 --> 00:12:52.650
And so what that sub limit does...
300
00:12:52.650 --> 00:12:55.680
Otherwise, there is no question that damage caused by water
301
00:12:55.680 --> 00:12:58.650
or anything else that is not an excluded cause of loss
302
00:12:58.650 --> 00:13:00.570
is covered under this policy,
303
00:13:00.570 --> 00:13:03.720
which has overall limits of $750 million.
304
00:13:03.720 --> 00:13:07.662
The application of the flood sub-limit takes away coverage
305
00:13:07.662 --> 00:13:11.608
for all of the damage that exceeds $100 million,
306
00:13:11.608 --> 00:13:14.820
at least insofar as the flood sub-limit applies to it.
307
00:13:14.820 --> 00:13:16.950
And so that's the question that we're dealing with here.
308
00:13:16.950 --> 00:13:20.190
It is definitely a limiting and exclusionary provision.
309
00:13:20.190 --> 00:13:22.690
Courts have always dealt with sub-limits that way.
310
00:13:23.610 --> 00:13:25.170
Is that?
311
00:13:25.170 --> 00:13:26.003
That's right.
312
00:13:26.003 --> 00:13:27.900
But it's not that it's excluded from the policy,
313
00:13:27.900 --> 00:13:29.220
it's just has to fall within
314
00:13:29.220 --> 00:13:31.140
the hundred million dollar limit.
315
00:13:31.140 --> 00:13:33.870
In our policy, we're not talking about taking away
316
00:13:33.870 --> 00:13:36.600
all coverage for all of the damage to the hospital.
317
00:13:36.600 --> 00:13:38.310
We're talking about taking away tens
318
00:13:38.310 --> 00:13:40.050
of millions of dollars of coverage
319
00:13:40.050 --> 00:13:41.730
for all of the damage in excess
320
00:13:41.730 --> 00:13:42.990
of a hundred million dollars.
321
00:13:42.990 --> 00:13:45.089
To Justice Kafker's question,
322
00:13:45.089 --> 00:13:48.030
in the standard policy we would be talking
323
00:13:48.030 --> 00:13:51.660
about taking away all coverage for all damage
324
00:13:51.660 --> 00:13:53.746
caused by water accumulation on the roof.
325
00:13:53.746 --> 00:13:55.113
Can I, sorry, can I just,
326
00:13:56.087 --> 00:13:58.320
'cause we have not much time limited left.
327
00:13:58.320 --> 00:14:01.020
With one question, in Fidelity,
328
00:14:01.020 --> 00:14:03.899
am I correct that the implication
329
00:14:03.899 --> 00:14:07.230
of reading surface waters to include the rain
330
00:14:07.230 --> 00:14:09.570
meant that coverage existed,
331
00:14:09.570 --> 00:14:11.490
which is the opposite of the situation here?
332
00:14:11.490 --> 00:14:12.323
Is that correct?
333
00:14:13.590 --> 00:14:14.670
It's absolutely correct.
334
00:14:14.670 --> 00:14:16.560
It would've been another way of finding coverage.
335
00:14:16.560 --> 00:14:17.393
Understood.
336
00:14:17.393 --> 00:14:19.350
So what I'm interested in is the question
337
00:14:19.350 --> 00:14:22.010
of how we deal with ambiguities,
338
00:14:22.010 --> 00:14:25.830
and obviously, ambiguities are generally construed
339
00:14:25.830 --> 00:14:27.270
in favor of the insured
340
00:14:27.270 --> 00:14:29.333
and that is a strong part of your argument here.
341
00:14:30.240 --> 00:14:34.380
Can you tell me what you think the practical differences are
342
00:14:34.380 --> 00:14:37.380
if this court were to rule for you on the grounds
343
00:14:37.380 --> 00:14:39.750
of ambiguity versus the grounds
344
00:14:39.750 --> 00:14:41.940
of its unambiguously in your favor?
345
00:14:41.940 --> 00:14:43.710
Because I'm thinking about other cases
346
00:14:43.710 --> 00:14:44.760
and I'm interested to know,
347
00:14:44.760 --> 00:14:47.280
are there other policies where surface water
348
00:14:47.280 --> 00:14:49.050
is used in a way that would,
349
00:14:49.050 --> 00:14:51.060
if ambiguous, flip the other direction
350
00:14:51.060 --> 00:14:52.350
and would that cause problems
351
00:14:52.350 --> 00:14:54.330
to have surface water mean one thing
352
00:14:54.330 --> 00:14:57.960
in half insurance contracts and one thing in another?
353
00:14:57.960 --> 00:14:59.307
Well, it's an excellent question, your Honor.
354
00:14:59.307 --> 00:15:02.250
And I think the best answer to that,
355
00:15:02.250 --> 00:15:05.490
what are the consequences of ruling in our favor,
356
00:15:05.490 --> 00:15:07.530
finding that these words are susceptible
357
00:15:07.530 --> 00:15:10.830
of more than one possible reasonable meaning in the policy
358
00:15:10.830 --> 00:15:13.530
is that it tells the insurers who are writing these policies
359
00:15:13.530 --> 00:15:15.150
using the term surface waters
360
00:15:15.150 --> 00:15:17.070
without having defined them
361
00:15:17.070 --> 00:15:20.640
to mean whatever it is that they wanna argue they mean now,
362
00:15:20.640 --> 00:15:22.410
that they need to be a little bit more careful
363
00:15:22.410 --> 00:15:24.480
in the drafting of their policy language.
364
00:15:24.480 --> 00:15:26.130
It is the insurer's burden
365
00:15:26.130 --> 00:15:28.590
when writing an exclusionary provision in a policy
366
00:15:28.590 --> 00:15:31.830
to state that wording in clear and unmistakable language.
367
00:15:31.830 --> 00:15:33.300
That's what this court has said.
368
00:15:33.300 --> 00:15:35.160
And so if the word surface waters
369
00:15:35.160 --> 00:15:38.070
is being used in the policy without having defined it
370
00:15:38.070 --> 00:15:40.080
to mean something other than what this court
371
00:15:40.080 --> 00:15:41.610
has defined it to mean,
372
00:15:41.610 --> 00:15:42.900
then I would submit that the insurer
373
00:15:42.900 --> 00:15:45.330
has not met its drafting burden in that case,
374
00:15:45.330 --> 00:15:47.220
and that it's not this court's job
375
00:15:47.220 --> 00:15:49.110
to relieve it of that drafting burden
376
00:15:49.110 --> 00:15:52.560
after the fact by construing surface waters so broadly
377
00:15:52.560 --> 00:15:53.700
as to encompass something
378
00:15:53.700 --> 00:15:54.960
that it could have written in the policy
379
00:15:54.960 --> 00:15:57.000
in the first place, but chose not to.
380
00:15:57.000 --> 00:15:59.310
But if we say it's unambiguous
381
00:15:59.310 --> 00:16:00.630
and it means what you say,
382
00:16:00.630 --> 00:16:04.500
what are the consequences more broadly beyond your case?
383
00:16:04.500 --> 00:16:06.750
I understand the canon of construction
384
00:16:06.750 --> 00:16:08.943
that we construe things that are ambiguous
385
00:16:08.943 --> 00:16:12.510
against the insurer,
386
00:16:12.510 --> 00:16:16.203
but what if we decided you're right, unambiguously?
387
00:16:17.940 --> 00:16:21.990
You win, but what are the consequences for the industry?
388
00:16:21.990 --> 00:16:25.980
Well, it may be the case that insurers would read that
389
00:16:25.980 --> 00:16:28.080
and decide that they want to be more specific
390
00:16:28.080 --> 00:16:28.913
in their-
391
00:16:28.913 --> 00:16:29.746
But what would happen to the Novas of the world,
392
00:16:29.746 --> 00:16:32.250
I guess is what I'm wondering?
393
00:16:32.250 --> 00:16:33.120
I'm sorry, say it again.
394
00:16:33.120 --> 00:16:35.400
What would happen to the Novas of the world,
395
00:16:35.400 --> 00:16:39.030
the Fidelities of the world in that case,
396
00:16:39.030 --> 00:16:41.583
post our decision that is unambiguous
397
00:16:41.583 --> 00:16:43.800
that surface water must run on the earth
398
00:16:43.800 --> 00:16:47.820
and I don't know, dilute unlike a natural waterway?
399
00:16:47.820 --> 00:16:50.400
In that case, it would've made no difference at all,
400
00:16:50.400 --> 00:16:52.290
because Nova already had coverage
401
00:16:52.290 --> 00:16:53.910
under the Drain Overflow provision.
402
00:16:53.910 --> 00:16:55.920
It did not need the flood endorsement
403
00:16:55.920 --> 00:16:58.440
and any surface water coverage in order to find coverage.
404
00:16:58.440 --> 00:17:00.324
In fact, if it had been relying
405
00:17:00.324 --> 00:17:01.920
on the surface water coverage
406
00:17:01.920 --> 00:17:03.708
and the flood endorsement of that policy,
407
00:17:03.708 --> 00:17:06.720
its recovery would've been $25,000 less.
408
00:17:06.720 --> 00:17:09.450
So there wouldn't be cases where,
409
00:17:09.450 --> 00:17:11.310
I thought Justice Dewar's question was,
410
00:17:11.310 --> 00:17:14.760
are there cases where the only way you're gonna get coverage
411
00:17:14.760 --> 00:17:18.510
is fitting in within this definition of surface water?
412
00:17:18.510 --> 00:17:22.353
And therefore, if we interpret this to be ambiguous,
413
00:17:24.425 --> 00:17:29.400
it's again, it's the opposite effect.
414
00:17:29.400 --> 00:17:30.573
I mean, I guess that's-
415
00:17:32.310 --> 00:17:36.293
Well, so the circumstance in which that would be the case-
416
00:17:36.293 --> 00:17:39.150
Meaning it's a coverage, rather than,
417
00:17:39.150 --> 00:17:40.950
or maybe it's the same effect
418
00:17:40.950 --> 00:17:44.190
that it's still gonna benefit the person seeking
419
00:17:44.190 --> 00:17:45.900
to claim under it, I guess.
420
00:17:45.900 --> 00:17:49.019
Is that right? Under either context.
421
00:17:49.019 --> 00:17:51.990
If you're a policy holder
422
00:17:51.990 --> 00:17:53.910
and your only source of coverage
423
00:17:53.910 --> 00:17:55.290
is under a policy provision
424
00:17:55.290 --> 00:17:58.200
that provides coverage for damage caused by surface water,
425
00:17:58.200 --> 00:17:59.850
rather than taking it away
426
00:17:59.850 --> 00:18:02.670
and you hold the wording of surface water,
427
00:18:02.670 --> 00:18:04.980
if it's not more specifically to find is ambiguous,
428
00:18:04.980 --> 00:18:06.780
policy holder is gonna win in that situation.
429
00:18:06.780 --> 00:18:08.257
It's entitled to the benefit the-
430
00:18:08.257 --> 00:18:12.480
So either way, ambiguity is gonna help the policy owner,
431
00:18:12.480 --> 00:18:16.590
both in terms of coverage and avoiding the exclusion.
432
00:18:16.590 --> 00:18:18.590
I think that's right, your Honor. Yes.
433
00:18:20.619 --> 00:18:21.870
I see that I'm three minutes overdue.
434
00:18:21.870 --> 00:18:22.703
I don't know if you want me
435
00:18:22.703 --> 00:18:24.213
to address this.
Go ahead, yeah.
436
00:18:24.213 --> 00:18:25.046
Okay.
437
00:18:25.046 --> 00:18:27.840
'Cause the question was posed about what is the circumstance
438
00:18:27.840 --> 00:18:32.340
where you might have a policy holder who needs surface water
439
00:18:32.340 --> 00:18:36.000
to include water on the roof in order to get coverage?
440
00:18:36.000 --> 00:18:38.010
And the only thing I can think of in that situation
441
00:18:38.010 --> 00:18:40.650
would be where a policy holder's only source of coverage
442
00:18:40.650 --> 00:18:45.650
is a flood policy, where flood is defined as,
443
00:18:45.690 --> 00:18:47.070
it might be defined in any number of ways.
444
00:18:47.070 --> 00:18:49.275
If it's a standard flood insurance policy,
445
00:18:49.275 --> 00:18:53.850
it would be the inundation of two or more acres of land
446
00:18:53.850 --> 00:18:56.010
or two or more properties
447
00:18:56.010 --> 00:18:58.830
that is caused by one of the enumerated things
448
00:18:58.830 --> 00:19:01.290
where surface waters is one of them.
449
00:19:01.290 --> 00:19:03.750
In our policy, you see that the flood definition
450
00:19:03.750 --> 00:19:06.540
is the inundation of a normally dry land area
451
00:19:06.540 --> 00:19:08.880
or a structure caused by surface water.
452
00:19:08.880 --> 00:19:12.570
If that was your only source of coverage
453
00:19:12.570 --> 00:19:13.800
for the water damage at issue,
454
00:19:13.800 --> 00:19:15.000
then you would need it to be so,
455
00:19:15.000 --> 00:19:17.310
but that would be highly unusual, your Honors,
456
00:19:17.310 --> 00:19:19.680
for you to have flood coverage,
457
00:19:19.680 --> 00:19:23.010
but not otherwise have water coverage subject
458
00:19:23.010 --> 00:19:24.180
to the standard exclusions.
459
00:19:24.180 --> 00:19:27.750
Can you give us a sense of whether the view,
460
00:19:27.750 --> 00:19:31.013
your view of what we say surface water is,
461
00:19:31.013 --> 00:19:32.610
is that in the majority
462
00:19:32.610 --> 00:19:35.730
or the minority view of other jurisdictions?
463
00:19:35.730 --> 00:19:37.890
You've seen some back and forth
464
00:19:37.890 --> 00:19:39.720
on this in the briefs, your Honor,
465
00:19:39.720 --> 00:19:44.720
and my view, if you look at the cases that have been cited,
466
00:19:45.000 --> 00:19:46.320
is that more of them come out
467
00:19:46.320 --> 00:19:48.060
in favor of MPT's interpretation
468
00:19:48.060 --> 00:19:50.430
of surface waters than do for Zurich's.
469
00:19:50.430 --> 00:19:53.580
And I would hope that you have appreciated
470
00:19:53.580 --> 00:19:55.800
in looking at the cases that Zurich
471
00:19:55.800 --> 00:19:57.303
and its amici have cited.
472
00:19:58.380 --> 00:20:01.770
About half of them involve the flow of water
473
00:20:01.770 --> 00:20:05.730
over a ground surface into the ground floor
474
00:20:05.730 --> 00:20:08.370
or the basement of the property at issue.
475
00:20:08.370 --> 00:20:09.660
That's what happened in Cameron,
476
00:20:09.660 --> 00:20:11.940
it's what happened in Crocker, it's what happened in Smith,
477
00:20:11.940 --> 00:20:14.310
it's what happened in Capital Mortgage.
478
00:20:14.310 --> 00:20:17.160
And in three of those four that I just mentioned,
479
00:20:17.160 --> 00:20:19.920
the court specifically, well, in two of them,
480
00:20:19.920 --> 00:20:21.930
the court specifically distinguished,
481
00:20:21.930 --> 00:20:24.630
and the other, the insurer itself specifically distinguished
482
00:20:24.630 --> 00:20:27.120
that situation of water flowing over the ground
483
00:20:27.120 --> 00:20:29.370
into the property from water that comes
484
00:20:29.370 --> 00:20:32.280
in through the roof from above.
485
00:20:32.280 --> 00:20:33.750
So in Cameron, the insurer can...
486
00:20:33.750 --> 00:20:35.190
There was water damage that came in
487
00:20:35.190 --> 00:20:37.410
from the roof through, through above.
488
00:20:37.410 --> 00:20:39.810
And the insurer conceded that that was not subject
489
00:20:39.810 --> 00:20:41.640
to the surface water exclusion.
490
00:20:41.640 --> 00:20:45.060
In Crocker and in Smith, the court looked at cases
491
00:20:45.060 --> 00:20:47.970
that have held water intrusion through the roof
492
00:20:47.970 --> 00:20:49.140
is not surface water,
493
00:20:49.140 --> 00:20:51.480
like the Cochran case in Louisiana.
494
00:20:51.480 --> 00:20:54.000
I think that's the one that I think some,
495
00:20:54.000 --> 00:20:55.650
maybe the Georgia and Florida decisions
496
00:20:55.650 --> 00:20:58.710
as well were looked at in those cases.
497
00:20:58.710 --> 00:21:01.170
And it said, what we have here
498
00:21:01.170 --> 00:21:03.810
is something completely distinguishable from that.
499
00:21:03.810 --> 00:21:06.000
Water flowing over the ground, over a patio,
500
00:21:06.000 --> 00:21:08.640
over the driveway into the building on its ground floor
501
00:21:08.640 --> 00:21:10.500
is not at all like rainwater
502
00:21:10.500 --> 00:21:12.975
that comes in from above through the roof.
503
00:21:12.975 --> 00:21:14.820
Well, it's the same rainstorm.
504
00:21:14.820 --> 00:21:16.290
Yeah, it's the exact same rainstorm.
505
00:21:16.290 --> 00:21:17.740
That's the problem, isn't it?
506
00:21:18.660 --> 00:21:21.030
And the water that's flowing off the roof
507
00:21:21.030 --> 00:21:23.940
is gonna be at the bottom of the building
508
00:21:23.940 --> 00:21:27.060
coming in to the building the other way.
509
00:21:27.060 --> 00:21:32.010
So it's hard to completely separate the two, right?
510
00:21:32.010 --> 00:21:34.020
And I think what your Honor is touching on now
511
00:21:34.020 --> 00:21:37.650
is some of what was driving the Martinez Court
512
00:21:37.650 --> 00:21:41.207
in the Colorado case that Zurich has relied on,
513
00:21:41.207 --> 00:21:45.450
and it stole this phrase that a building roof
514
00:21:45.450 --> 00:21:47.550
is just an extension of the surface of the earth
515
00:21:47.550 --> 00:21:51.450
at that point from the Bringhurst decision in Delaware,
516
00:21:51.450 --> 00:21:55.050
which was entirely different circumstances,
517
00:21:55.050 --> 00:21:57.930
and in Bringhurst the roof had to be considered
518
00:21:57.930 --> 00:21:59.970
an extension of the surface of the earth in that case,
519
00:21:59.970 --> 00:22:02.537
because there was no land on the property from-
520
00:22:02.537 --> 00:22:05.070
Right. The whole thing was covered by the roof.
521
00:22:05.070 --> 00:22:05.903
Right.
522
00:22:05.903 --> 00:22:08.940
So I think these insurance coverage cases
523
00:22:08.940 --> 00:22:11.146
stealing from Bringhurst in support of this,
524
00:22:11.146 --> 00:22:13.110
to me seems entirely misguided.
525
00:22:13.110 --> 00:22:15.750
But in Martinez, the court could think of it that way
526
00:22:15.750 --> 00:22:18.420
because it wasn't a flat enclosed roof
527
00:22:18.420 --> 00:22:19.890
like what we have here.
528
00:22:19.890 --> 00:22:23.970
It was a roof like you think of on most homes
529
00:22:23.970 --> 00:22:25.080
that slopes down.
530
00:22:25.080 --> 00:22:26.460
And so the rainwater hits the roof
531
00:22:26.460 --> 00:22:30.390
and it flows off onto the ground, as it did in that case.
532
00:22:30.390 --> 00:22:32.070
It landed on the roof and flowed down
533
00:22:32.070 --> 00:22:33.600
to the ground in the window wells.
534
00:22:33.600 --> 00:22:36.960
And so, yeah, you might tend to think
535
00:22:36.960 --> 00:22:39.330
of it a little bit more differently in a case like that.
536
00:22:39.330 --> 00:22:42.030
But again, that's not our case.
537
00:22:42.030 --> 00:22:43.560
Okay. Thank you very much.
538
00:22:43.560 --> 00:22:44.810
Thank you, your honors.
539
00:22:45.660 --> 00:22:48.993
Okay. Attorney Hofer?
540
00:22:57.300 --> 00:22:58.440
Madam Chief Justice,
541
00:22:58.440 --> 00:23:00.000
and may it please the court Patrick Hofer
542
00:23:00.000 --> 00:23:04.770
for Appellee Zurich and American Guarantee.
543
00:23:04.770 --> 00:23:06.540
Just blocks from this courthouse,
544
00:23:06.540 --> 00:23:10.133
there are entire neighborhoods
545
00:23:10.133 --> 00:23:13.754
that consist of buildings that are built
546
00:23:13.754 --> 00:23:15.090
right next to each other,
547
00:23:15.090 --> 00:23:17.850
where if you look from above,
548
00:23:17.850 --> 00:23:20.790
the entire block is nothing but roof.
549
00:23:20.790 --> 00:23:22.830
This includes residential row houses
550
00:23:22.830 --> 00:23:25.590
and commercial buildings with low slope roofs
551
00:23:25.590 --> 00:23:27.150
that have a parapet wall.
552
00:23:27.150 --> 00:23:28.470
Can I ask you, are we applying
553
00:23:28.470 --> 00:23:31.113
the DeSanctis standard in this case?
554
00:23:32.430 --> 00:23:33.263
I'm sorry, your Honor?
555
00:23:33.263 --> 00:23:36.723
Are we applying the DeSanctis standard in this case?
556
00:23:38.160 --> 00:23:42.243
We start with where the language in DeSanctis comes from,
557
00:23:43.080 --> 00:23:45.150
and that goes back further than DeSanctis.
558
00:23:45.150 --> 00:23:45.983
Okay.
559
00:23:47.707 --> 00:23:49.353
Is the term surface water we are applying in this case
560
00:23:52.920 --> 00:23:54.780
is water from rain, et cetera, correct?
561
00:23:54.780 --> 00:23:55.743
Exactly.
Okay.
562
00:23:57.120 --> 00:23:58.888
I get the surface of the earth,
563
00:23:58.888 --> 00:24:00.870
which is you're talking about your row houses
564
00:24:00.870 --> 00:24:04.740
and the roof is an extension of the surface of the earth.
565
00:24:04.740 --> 00:24:06.180
That's metaphysical.
566
00:24:06.180 --> 00:24:10.350
But how do you deal with the naturally spread over
567
00:24:10.350 --> 00:24:12.330
the ground part of that,
568
00:24:12.330 --> 00:24:15.450
dealing with pooled water on a roof
569
00:24:15.450 --> 00:24:17.430
that never hits the ground?
570
00:24:17.430 --> 00:24:20.940
So DeSanctis of course, didn't involve a roof.
571
00:24:20.940 --> 00:24:24.660
It involved marshy land in Sargues
572
00:24:24.660 --> 00:24:28.062
and didn't have to consider whether water
573
00:24:28.062 --> 00:24:31.020
on a roof constituted surface waters or not.
574
00:24:31.020 --> 00:24:34.440
It used language which the law had defined
575
00:24:34.440 --> 00:24:35.850
for over a century,
576
00:24:35.850 --> 00:24:39.180
which distinguished natural sources of water-
577
00:24:39.180 --> 00:24:42.513
So you want to read out of DeSanctis
578
00:24:42.513 --> 00:24:44.670
in our subsequent cases
579
00:24:44.670 --> 00:24:47.700
that naturally spread over the ground part of the standard?
580
00:24:47.700 --> 00:24:49.290
No, you don't need to read it out.
581
00:24:49.290 --> 00:24:51.360
You just need to read it in context.
582
00:24:51.360 --> 00:24:55.440
And so, the context of the law's definition
583
00:24:55.440 --> 00:24:59.910
of surface waters was to distinguish sources of water,
584
00:24:59.910 --> 00:25:01.500
and there were three kinds.
585
00:25:01.500 --> 00:25:02.670
There's water in a channel,
586
00:25:02.670 --> 00:25:04.860
a natural channel like a stream or river,
587
00:25:04.860 --> 00:25:07.830
water in a body like a lake or a pond,
588
00:25:07.830 --> 00:25:10.080
and then everything else that is not contained
589
00:25:10.080 --> 00:25:10.980
and not channeled.
590
00:25:10.980 --> 00:25:12.480
And that was called surface waters.
591
00:25:12.480 --> 00:25:15.771
And the history of this court's decisions over time
592
00:25:15.771 --> 00:25:19.710
consistently agreed that surface waters
593
00:25:19.710 --> 00:25:21.600
includes water on a roof.
594
00:25:21.600 --> 00:25:24.980
There are many cases, we've cited them, where...
595
00:25:24.980 --> 00:25:25.900
I'm sorry.
596
00:25:25.900 --> 00:25:29.280
Where the courts had roofs at issue
597
00:25:29.280 --> 00:25:33.000
and the court said, yes, this water's on the roof,
598
00:25:33.000 --> 00:25:34.320
that's surface water.
599
00:25:34.320 --> 00:25:35.610
Next case, yes, water on the roof.
600
00:25:35.610 --> 00:25:36.443
That's surface water.
601
00:25:36.443 --> 00:25:38.490
In Cochran in 1919,
602
00:25:38.490 --> 00:25:40.935
the court said this is the familiar rule.
603
00:25:40.935 --> 00:25:44.820
So yes, where we're dealing with waters on a roof,
604
00:25:44.820 --> 00:25:47.310
the court's consistent preference has been
605
00:25:47.310 --> 00:25:50.400
that is surface waters for purposes of our legal class.
606
00:25:50.400 --> 00:25:51.233
Oh, rainwater?
607
00:25:51.233 --> 00:25:53.280
Oh, rainwater is surface water on the roof?
608
00:25:53.280 --> 00:25:55.800
When it accumulates, and-
609
00:25:55.800 --> 00:25:57.300
It always accumulates a little bit, right?
610
00:25:57.300 --> 00:25:58.830
I mean, if it's raining hard,
611
00:25:58.830 --> 00:26:00.960
there's always some accumulation.
612
00:26:00.960 --> 00:26:03.150
I'm just trying to make sure the...
613
00:26:03.150 --> 00:26:04.590
Sorry, Justice Gaziano, are you?
614
00:26:04.590 --> 00:26:06.540
No, I'm just, I didn't get my question answered,
615
00:26:06.540 --> 00:26:07.373
but go ahead.
616
00:26:07.373 --> 00:26:08.206
Oh, well I'm sorry.
617
00:26:08.206 --> 00:26:09.039
I meant to answer your question.
618
00:26:09.039 --> 00:26:09.872
I just don't get.
619
00:26:09.872 --> 00:26:12.990
The naturally spread over the ground troubles me
620
00:26:12.990 --> 00:26:14.850
in the application in this case.
621
00:26:14.850 --> 00:26:16.510
And I don't think it's-
Go ahead. I understand.
622
00:26:16.510 --> 00:26:20.195
May I answer Justice Gaziano's question?
623
00:26:20.195 --> 00:26:23.340
The answer to your question is
624
00:26:23.340 --> 00:26:27.360
that part of the statement in DeSanctis
625
00:26:27.360 --> 00:26:29.010
about what surface waters is
626
00:26:29.010 --> 00:26:32.130
was necessary to the holding in that case
627
00:26:32.130 --> 00:26:34.680
because it involved water on the ground.
628
00:26:34.680 --> 00:26:37.320
But if we look back further into the history
629
00:26:37.320 --> 00:26:39.780
of the term in this court's precedent,
630
00:26:39.780 --> 00:26:42.081
it is clear it doesn't have to be on the ground.
631
00:26:42.081 --> 00:26:43.488
[Justice Wendlandt] What cases?
632
00:26:43.488 --> 00:26:46.080
We start with Field versus Gowdy,
633
00:26:46.080 --> 00:26:49.770
and Cochran in 1919, the case that I just mentioned.
634
00:26:49.770 --> 00:26:53.280
We cited Field v. Gowdy and multiple other cases,
635
00:26:53.280 --> 00:26:55.080
which said this is the familiar rule.
636
00:26:55.080 --> 00:26:56.760
But isn't, excuse me, in Field v. Gowdy,
637
00:26:56.760 --> 00:26:58.830
the water was on the ground, right?
638
00:26:58.830 --> 00:27:00.450
The water that caused the damage
639
00:27:00.450 --> 00:27:02.673
that froze and someone got injured.
640
00:27:03.690 --> 00:27:04.830
Yeah, it was started on the roof.
641
00:27:04.830 --> 00:27:07.877
And then the court very clearly said that surface water
642
00:27:07.877 --> 00:27:11.010
came from the roof was channeled through downspouts
643
00:27:11.010 --> 00:27:12.150
or gutters and then-
644
00:27:12.150 --> 00:27:13.260
Into the ground.
645
00:27:13.260 --> 00:27:14.679
Onto the ground.
Yes.
646
00:27:14.679 --> 00:27:16.557
So what about Cochran?
647
00:27:16.557 --> 00:27:21.150
Was that never on the ground, the earth?
648
00:27:21.150 --> 00:27:23.310
It started with the water on the roof.
649
00:27:23.310 --> 00:27:24.300
Well, I mean sure, sure.
650
00:27:24.300 --> 00:27:27.720
The water, as we all know, comes from the clouds.
651
00:27:27.720 --> 00:27:32.100
No, no, but the legal construct
652
00:27:32.100 --> 00:27:34.825
that the court was using about liability
653
00:27:34.825 --> 00:27:37.620
and your obligations and do you-
654
00:27:37.620 --> 00:27:39.570
So I guess my question is in Cochran,
655
00:27:39.570 --> 00:27:42.240
was the water on the ground at any point?
656
00:27:42.240 --> 00:27:43.331
Eventually, yes.
657
00:27:43.331 --> 00:27:44.220
[Justice Wendlandt] Okay, thank you.
658
00:27:44.220 --> 00:27:45.960
Yeah, and that's what I'm asking,
659
00:27:45.960 --> 00:27:48.289
because in this case, we have water that pooled
660
00:27:48.289 --> 00:27:52.800
on the deck, the second story deck in the roof,
661
00:27:52.800 --> 00:27:55.500
and never went down, and went into the building.
662
00:27:55.500 --> 00:27:57.450
I guess, eventually it gets to the ground,
663
00:27:57.450 --> 00:28:00.750
but caused the damage before that.
664
00:28:00.750 --> 00:28:01.983
Correct.
665
00:28:01.983 --> 00:28:06.983
Well, but the factual issue in all the cases that we cite,
666
00:28:08.130 --> 00:28:09.810
yes, the water did reach the ground,
667
00:28:09.810 --> 00:28:13.020
but that wasn't why the landowner had liability.
668
00:28:13.020 --> 00:28:14.940
It was because if the water
669
00:28:14.940 --> 00:28:18.120
hadn't been redirected artificially
670
00:28:18.120 --> 00:28:21.810
through a downspout or a channel of some sort,
671
00:28:21.810 --> 00:28:23.370
the landowner wouldn't have liability,
672
00:28:23.370 --> 00:28:26.160
because the water on the roof is surface waters
673
00:28:26.160 --> 00:28:29.190
and that falls where it may.
674
00:28:29.190 --> 00:28:31.500
Doesn't that derive with what the landowner did
675
00:28:31.500 --> 00:28:33.540
or did not do with the artificial structures
676
00:28:33.540 --> 00:28:35.400
on their property, which directed water?
677
00:28:35.400 --> 00:28:39.210
It doesn't really have to do with the classification
678
00:28:39.210 --> 00:28:40.800
and nature of the water.
679
00:28:40.800 --> 00:28:42.210
This isn't a contract,
680
00:28:42.210 --> 00:28:45.090
and we have to interpret the contract
681
00:28:45.090 --> 00:28:47.130
and it specifies different kinds of,
682
00:28:47.130 --> 00:28:48.330
as you helpfully suggested,
683
00:28:48.330 --> 00:28:50.850
there's different categories of water.
684
00:28:50.850 --> 00:28:53.354
Can you respond to the argument about
685
00:28:53.354 --> 00:28:55.560
our familiar canon of construction
686
00:28:55.560 --> 00:28:58.170
that we should interpret the word surface water
687
00:28:58.170 --> 00:29:00.390
in keeping with the other items in the list
688
00:29:00.390 --> 00:29:01.500
in the flood limitation,
689
00:29:01.500 --> 00:29:05.790
which are tsunami, waves and so forth?
690
00:29:05.790 --> 00:29:09.960
Right, so the taxonomy or the classification used
691
00:29:09.960 --> 00:29:11.220
in that definition mirrors
692
00:29:11.220 --> 00:29:13.652
the same classification used by the law.
693
00:29:13.652 --> 00:29:16.860
There are sources of natural water,
694
00:29:16.860 --> 00:29:18.600
natural sources of water.
695
00:29:18.600 --> 00:29:20.250
And that's what the law used.
696
00:29:20.250 --> 00:29:22.980
And that's why surface waters is really a law term.
697
00:29:22.980 --> 00:29:25.408
It's not merely a contract term.
698
00:29:25.408 --> 00:29:30.030
Both parties agree that the law's definition
699
00:29:30.030 --> 00:29:32.937
of surface water is what controls here.
700
00:29:32.937 --> 00:29:37.937
And so, yes, the breakdown identifies various sources,
701
00:29:38.130 --> 00:29:41.070
but not all of them have to be on the ground.
702
00:29:41.070 --> 00:29:44.070
And surface waters, I think probably just surface waters,
703
00:29:44.070 --> 00:29:47.760
all the others of course, natural bodies are on the ground,
704
00:29:47.760 --> 00:29:49.740
surface water, it doesn't have to be on the ground,
705
00:29:49.740 --> 00:29:51.930
and that's what the law has said for over 150 years.
706
00:29:51.930 --> 00:29:54.840
Surface water is precipitation then,
707
00:29:54.840 --> 00:29:56.850
under your definition?
708
00:29:56.850 --> 00:30:01.776
It is when it accumulates on a surface, yes.
709
00:30:01.776 --> 00:30:03.330
And in Boazova, the court said-
710
00:30:03.330 --> 00:30:06.315
So all precipitation, surface water.
711
00:30:06.315 --> 00:30:08.280
Essentially what it is, if it's unchanneled,
712
00:30:08.280 --> 00:30:13.170
undirected, uncontained, and accumulation, so yes.
713
00:30:13.170 --> 00:30:16.830
So does that pose the problem identified by the amicus
714
00:30:16.830 --> 00:30:20.220
that every time it rains and the roof leaks now,
715
00:30:20.220 --> 00:30:22.800
that fits within the surface water,
716
00:30:22.800 --> 00:30:25.890
rather than it's not covered?
717
00:30:25.890 --> 00:30:28.810
No, your Honor, because the amicus
718
00:30:30.630 --> 00:30:35.280
forgets that for flood coverage, which is what we have here,
719
00:30:35.280 --> 00:30:36.510
you have to have more than a leak.
720
00:30:36.510 --> 00:30:37.920
You have to have inundation,
721
00:30:37.920 --> 00:30:39.360
you have to have something-
But no.
722
00:30:39.360 --> 00:30:42.346
But I'm trying to understand the background assumption.
723
00:30:42.346 --> 00:30:46.263
When it rains hard and the roof leaks,
724
00:30:47.302 --> 00:30:50.220
is that covered or not now, in your world
725
00:30:50.220 --> 00:30:54.300
where surface water includes any precipitation
726
00:30:54.300 --> 00:30:55.590
on the roof?
727
00:30:55.590 --> 00:30:59.768
Where we have flood coverage as defined here
728
00:30:59.768 --> 00:31:04.768
and it has a rapid unusual accumulation-
729
00:31:05.790 --> 00:31:08.070
So it requires an unusual accumulation?
730
00:31:08.070 --> 00:31:10.652
'Cause again, I'm trying...
731
00:31:10.652 --> 00:31:12.360
We don't wanna do damage
732
00:31:12.360 --> 00:31:15.450
to the entire insurance industry out here.
733
00:31:15.450 --> 00:31:19.020
So we wanna try and understand what you're saying.
734
00:31:19.020 --> 00:31:24.020
Are the amicus wrong that leaking roofs are now,
735
00:31:24.330 --> 00:31:26.100
in your view, surface water?
736
00:31:26.100 --> 00:31:30.244
So we don't recover for those?
737
00:31:30.244 --> 00:31:32.883
Just help us out here because-
Yeah.
738
00:31:33.750 --> 00:31:38.750
So I'm drawing a distinction between coverage for flood
739
00:31:39.480 --> 00:31:41.160
and exclusion for flood,
740
00:31:41.160 --> 00:31:43.800
and the very typical policy floods is excluded.
741
00:31:43.800 --> 00:31:46.500
Right, but rain is not always a flood, right?
742
00:31:46.500 --> 00:31:50.070
And rain, there may be coverage for rain damage,
743
00:31:50.070 --> 00:31:51.540
not by flood.
744
00:31:51.540 --> 00:31:53.760
But maybe, they're saying that you,
745
00:31:53.760 --> 00:31:55.950
the way you're interpreting surface waters
746
00:31:55.950 --> 00:31:57.930
is going to eliminate that.
747
00:31:57.930 --> 00:31:58.770
No, your Honor.
748
00:31:58.770 --> 00:31:59.640
Why not?
749
00:31:59.640 --> 00:32:03.510
Because the coverage for rain damage, not flood,
750
00:32:03.510 --> 00:32:05.760
so it doesn't have to be accumulation,
751
00:32:05.760 --> 00:32:10.760
rain damage to the interior of the property is covered,
752
00:32:11.280 --> 00:32:15.090
unless that is excluded, excuse me.
753
00:32:15.090 --> 00:32:20.090
Unless that rain entered through damage to the roof.
754
00:32:21.150 --> 00:32:22.050
So it's excluded.
755
00:32:22.050 --> 00:32:23.790
So you're saying-
Typically excluded.
756
00:32:23.790 --> 00:32:26.790
So you're saying the amicus are correct that...
757
00:32:26.790 --> 00:32:28.320
Oh no, you're saying that typically,
758
00:32:28.320 --> 00:32:29.820
rain is typically excluded.
759
00:32:29.820 --> 00:32:30.840
Typically.
760
00:32:30.840 --> 00:32:32.640
So, if there's wind driven,
761
00:32:32.640 --> 00:32:36.240
if the rain damages the roof in my brother,
762
00:32:36.240 --> 00:32:38.040
Mr. Page's example,
763
00:32:38.040 --> 00:32:39.360
if the rain damages the roof
764
00:32:39.360 --> 00:32:42.360
and the rain enters through that damage, yes.
765
00:32:42.360 --> 00:32:44.790
And then that would provide coverage
766
00:32:44.790 --> 00:32:46.170
for the water damage.
767
00:32:46.170 --> 00:32:48.013
What would provide coverage?
768
00:32:48.013 --> 00:32:50.580
It's called the rain limitation in the policy.
769
00:32:50.580 --> 00:32:52.230
So rain damage is excluded
770
00:32:52.230 --> 00:32:54.330
unless there's damage to the roof
771
00:32:54.330 --> 00:32:56.040
that allows the rain to enter.
772
00:32:56.040 --> 00:32:56.873
Under your theory,
773
00:32:56.873 --> 00:32:58.530
they would no longer get coverage, correct?
774
00:32:58.530 --> 00:33:00.960
Because the water that was on the roof is surface water
775
00:33:00.960 --> 00:33:03.810
and it would therefore be subject to the flood exclusion.
776
00:33:05.190 --> 00:33:06.390
No, your Honor.
777
00:33:06.390 --> 00:33:07.380
No, because the...
778
00:33:07.380 --> 00:33:11.910
So this was actually the issue in Fidelity versus Nova.
779
00:33:11.910 --> 00:33:16.110
This is the two competing provisions.
780
00:33:16.110 --> 00:33:17.610
If there's debris in the gutter
781
00:33:17.610 --> 00:33:21.060
and it doesn't drain,
782
00:33:21.060 --> 00:33:24.600
then there's some accumulation of the rainwater, right?
783
00:33:24.600 --> 00:33:27.720
Then it becomes surface water and it's no longer covered.
784
00:33:27.720 --> 00:33:29.490
So if there's damage in the roof,
785
00:33:29.490 --> 00:33:30.480
it doesn't accumulate.
786
00:33:30.480 --> 00:33:32.490
It goes through the damage.
787
00:33:32.490 --> 00:33:33.570
I get what you're saying.
788
00:33:33.570 --> 00:33:37.860
If it's wind driven and the rain penetrates,
789
00:33:37.860 --> 00:33:39.540
which happens in my town constantly,
790
00:33:39.540 --> 00:33:43.590
so rain penetrates, that's covered under your vision.
791
00:33:43.590 --> 00:33:46.500
But what I'm saying is if it's accumulation
792
00:33:46.500 --> 00:33:49.683
and then it penetrates, it becomes surface water.
793
00:33:50.730 --> 00:33:51.900
Exactly.
794
00:33:51.900 --> 00:33:53.490
And if there's coverage,
795
00:33:53.490 --> 00:33:56.763
as there was in Fidelity for surface water,
796
00:33:56.763 --> 00:33:58.350
then that coverage applies.
797
00:33:58.350 --> 00:34:02.880
If it's excluded, the surface water is excluded.
798
00:34:02.880 --> 00:34:05.970
So it would all turn on a sort of post hoc determination
799
00:34:05.970 --> 00:34:08.493
of how deep the water got on the roof?
800
00:34:10.026 --> 00:34:13.830
The way the water entered the building,
801
00:34:13.830 --> 00:34:16.140
I think is the way, and it is, yes.
802
00:34:16.140 --> 00:34:18.930
Either directly or via accumulation
803
00:34:18.930 --> 00:34:21.120
or standing water, essentially.
804
00:34:21.120 --> 00:34:21.953
Yes.
805
00:34:21.953 --> 00:34:23.670
Well, so here the facts are
806
00:34:23.670 --> 00:34:26.820
the water accumulated to a high degree
807
00:34:26.820 --> 00:34:28.220
on the roof of the building.
808
00:34:29.700 --> 00:34:31.890
MPT's argument is it's a significant flood
809
00:34:31.890 --> 00:34:34.373
really isn't a flood, but of course it is a flood.
810
00:34:34.373 --> 00:34:37.980
So this is an incredible inundation.
811
00:34:37.980 --> 00:34:42.330
And they rely on the surface water argument to say
812
00:34:42.330 --> 00:34:43.530
well, this wasn't surface water.
813
00:34:43.530 --> 00:34:47.130
But we go back to how the court has defined surface waters
814
00:34:47.130 --> 00:34:49.980
for over a hundred years.
815
00:34:49.980 --> 00:34:50.890
It's exactly how the court has treated it.
816
00:34:50.890 --> 00:34:54.450
Well, sorry, the 2012 cases though define surface water
817
00:34:54.450 --> 00:34:58.230
in a very specific way that is not what you're saying,
818
00:34:58.230 --> 00:35:01.680
because it specifically refers to flowing over the ground.
819
00:35:01.680 --> 00:35:04.830
And so I'm interested in your observation
820
00:35:04.830 --> 00:35:06.690
that the word you are saying
821
00:35:06.690 --> 00:35:08.220
that you think the word surface waters
822
00:35:08.220 --> 00:35:11.117
is essentially a legal term, like a term of art.
823
00:35:11.117 --> 00:35:13.170
But a lot of your arguments
824
00:35:13.170 --> 00:35:14.640
are relying on dictionary definitions
825
00:35:14.640 --> 00:35:17.250
of the word surface, which are intuitive definitions
826
00:35:17.250 --> 00:35:18.810
that would definitely include the roof,
827
00:35:18.810 --> 00:35:20.670
like it's a surface of the earth.
828
00:35:20.670 --> 00:35:23.370
So can you reconcile those two points?
829
00:35:23.370 --> 00:35:24.450
So Boazova and Surabian,
830
00:35:24.450 --> 00:35:27.060
the 2012 cases that you just mentioned
831
00:35:27.060 --> 00:35:29.790
actually sort of drew back a little bit from DeSanctis,
832
00:35:29.790 --> 00:35:33.570
because the court didn't hold in those cases
833
00:35:33.570 --> 00:35:36.840
that the water has to touch natural soil.
834
00:35:36.840 --> 00:35:38.490
It can on an artificial surface.
835
00:35:38.490 --> 00:35:42.000
Yeah, but that was just a raised patio.
836
00:35:42.000 --> 00:35:44.070
The patio and the parking lot.
837
00:35:44.070 --> 00:35:48.669
Right, so the patio was on the same level
838
00:35:48.669 --> 00:35:51.570
as the ledge.
Correct.
839
00:35:51.570 --> 00:35:52.523
In the house, right?
840
00:35:52.523 --> 00:35:56.010
But the challenge in those cases was,
841
00:35:56.010 --> 00:35:58.830
in DeSanctis, the suggestion was it has to be,
842
00:35:58.830 --> 00:36:00.330
has to cover the ground,
843
00:36:00.330 --> 00:36:02.760
has to be on the surface of the earth.
844
00:36:02.760 --> 00:36:04.260
And the court said no,
845
00:36:04.260 --> 00:36:07.050
and this is in context of exclusions.
846
00:36:07.050 --> 00:36:09.704
The court said no, it can be an artificial surface.
847
00:36:09.704 --> 00:36:10.890
That's on the ground.
848
00:36:10.890 --> 00:36:13.320
Right, so here of course, the roof,
849
00:36:13.320 --> 00:36:15.300
we have an artificial surface.
850
00:36:15.300 --> 00:36:16.920
It's higher than the ground.
851
00:36:16.920 --> 00:36:18.960
That's the issue, right? Is how high up.
852
00:36:18.960 --> 00:36:19.793
One of them-
Is that
853
00:36:19.793 --> 00:36:21.120
how high up is that patio, right?
854
00:36:21.120 --> 00:36:23.700
One of the roofs is a courtyard
855
00:36:23.700 --> 00:36:25.200
where people walk and have lunch.
856
00:36:25.200 --> 00:36:27.750
So many ways, it is the ground,
857
00:36:27.750 --> 00:36:30.360
and of course other surfaces are higher.
858
00:36:30.360 --> 00:36:33.360
And that gets into, well, are we dealing with a height test?
859
00:36:33.360 --> 00:36:37.110
Is it a patio, on the ground, surface of the earth,
860
00:36:37.110 --> 00:36:38.820
but a courtyard a little bit higher?
861
00:36:38.820 --> 00:36:42.600
But if you're an ordinary person and you walked into,
862
00:36:42.600 --> 00:36:46.320
I forget, was it the second case, the patio case?
863
00:36:46.320 --> 00:36:48.210
Boazova.
Boazova.
864
00:36:48.210 --> 00:36:50.377
If you walked up to that patio and you said,
865
00:36:50.377 --> 00:36:52.080
"Is that on the ground?",
866
00:36:52.080 --> 00:36:54.360
a normal person would say, "Yeah, it is."
867
00:36:54.360 --> 00:36:56.130
And then if he went up to Norwood Hospital
868
00:36:56.130 --> 00:36:58.950
and said, "Is that thing on the ground?"
869
00:36:58.950 --> 00:37:00.180
Everybody says no.
870
00:37:00.180 --> 00:37:01.140
And the courtyard.
871
00:37:01.140 --> 00:37:02.700
So the courtyard, where they say,
872
00:37:02.700 --> 00:37:03.980
if they're having lunch on the courtyard,
873
00:37:03.980 --> 00:37:05.010
is that the ground?
874
00:37:05.010 --> 00:37:07.080
I mean, I think many people say yes.
875
00:37:07.080 --> 00:37:08.130
Well if you went in the elevator
876
00:37:08.130 --> 00:37:09.870
and you hit the ground floor,
877
00:37:09.870 --> 00:37:11.720
you're not going on floor two, right?
878
00:37:12.810 --> 00:37:13.643
I can see that, your Honor.
879
00:37:13.643 --> 00:37:15.930
Okay. (laughs)
880
00:37:15.930 --> 00:37:17.463
You're my insurance broker.
881
00:37:18.404 --> 00:37:21.150
I retire from this court, I wanna buy that building,
882
00:37:21.150 --> 00:37:26.150
and I want insurance, I wanna buy insurance for that,
883
00:37:26.820 --> 00:37:30.060
and I wanna cover these different problems.
884
00:37:30.060 --> 00:37:33.690
It now rains a hell of a lot in Massachusetts.
885
00:37:33.690 --> 00:37:34.893
What do I buy?
886
00:37:35.850 --> 00:37:38.760
How do I protect myself from this happening again?
887
00:37:38.760 --> 00:37:40.350
What kind of insurance do I buy?
888
00:37:40.350 --> 00:37:45.350
I think in my policy my client sold, and my client,
889
00:37:45.600 --> 00:37:47.820
we provided flood coverage.
890
00:37:47.820 --> 00:37:50.550
So again, I've got three different kinds of damages.
891
00:37:50.550 --> 00:37:54.450
I got a hard rain and it may come into...
892
00:37:54.450 --> 00:37:55.380
You're my broker.
893
00:37:55.380 --> 00:37:58.170
I wanna protect myself from a hard rain
894
00:37:58.170 --> 00:38:00.000
going into the building.
895
00:38:00.000 --> 00:38:02.910
Am I protected by the basic policy?
896
00:38:02.910 --> 00:38:05.727
No.
I'm not. So what do I buy?
897
00:38:05.727 --> 00:38:08.190
In a commercial property insurance policy,
898
00:38:08.190 --> 00:38:11.940
like that's sold here, you buy flood coverage.
899
00:38:11.940 --> 00:38:13.800
So I have to buy flood coverage
900
00:38:13.800 --> 00:38:16.440
to deal with hard rains on my roof.
901
00:38:16.440 --> 00:38:19.290
But I can't get flood coverage, can I?
902
00:38:19.290 --> 00:38:21.753
Yes you can. Absolutely, you can.
903
00:38:23.070 --> 00:38:25.259
The flood, I mean I've been litigating-
904
00:38:25.259 --> 00:38:28.020
But again, I bought this building now,
905
00:38:28.020 --> 00:38:30.270
I just bought it from Seward Hospital,
906
00:38:30.270 --> 00:38:33.180
I now have to buy flood insurance
907
00:38:33.180 --> 00:38:37.680
to cover rain pouring through my roof.
908
00:38:37.680 --> 00:38:39.360
Yes.
Okay.
909
00:38:39.360 --> 00:38:42.270
And then I... Okay.
910
00:38:42.270 --> 00:38:44.220
That's your answer.
Yes, your honor.
911
00:38:45.360 --> 00:38:46.660
I see my time has elapsed.