concurring.
This is a close case, in my view, but I concur in the affirmance of the summary judgment and in the court’s opinion explaining the affirmance. I wish to add a few words on the question that has been the most troubling one for me — the question whether the plaintiff has waived its argument as to the existence of a factual dispute over when the one-year limitations period began to run.
In pleading its limitations defense, Reliance pointed out that LBC’s complaint alleged discovery of “at least some portion of the loss as early as June, 1990.” Reliance went on to aver that “[t]he entire loss was discovered no later than September 10, 1990 when written notice of loss was tendered .... ”
In its brief opposing summary judgment, LBC observed — accurately—that the notice tendered on September 10 was merely notice of a “potential claim.” But the brief did not contend that there was a genuine issue as to when the entire loss was discovered or should have been discovered. Neither was such a contention advanced in the surreply brief containing LBC’s final submission to the district court. What LBC contended, rather, was that the provisions of the insurance contract made cooperation in Reliance’s investigation a condition precedent to the bringing of suit, and the length of the investigation rendered it impossible for LBC to meet the condition prior to October of 1991. The district court did not find this contention persuasive, and neither do I.
The district court might have been more receptive to an argument that Reliance was not entitled to summary judgment because there was a genuine issue of fact as to whether LBC could reasonably have discovered the extent and amount of the loss before the end of October of 1990. Like my colleagues on the panel, however, I have been unable to find in the papers that LBC filed with the district court anything that could fairly be said to have brought this discovery date issue to the court’s attention. It is not enough that the issue may have been implicit in what was presented; judges are not mind readers, and if LBC wanted the district court to consider a discovery date argument, it should have said so.