danielle and thomas francis this case involves the question of whether under arguably california law but perhaps maryland law under any conceivable theory to use the language in the count california cases that all state o t there's a not cop yes but at least a catch twenty two in the sense once the lower court ruled that california law applied to the coverage issues in the declaratory judgment action it effectively ruled that the plaintiffs could not recover the cost of prosecuting that declaratory judgment action so under the speed of a case in california unlike maryland law where the the insureds the plaintiffs in this case who successfully prosecuted declaratory judgment action can obtain their attorney fees california law is quite absolute that the prevailing plaintiffs in shorts cannot so it creates that issue or perhaps i should be arguing agreeing with the judge that strictly california law should apply because once the judge ruled as a matter of law that california law governs the claim for prosecuting the declaratory judgment action went out the window that i'm not so sure about that mr brown it's a nice point you make but it doesn't give me a headache to think that that the special provision of maryland declaratory judgment law could apply as a remedial statute notwithstanding the application of substantive california law but the statute doesn't apply as and provide that procedure law is not to the subject of law is what allows to cost the declaratory judgment statute never authorized the feet character judgment statue of authorized cost such as filed we're agreeing with each other so but there's no provision under the statute maryland law that allows that stuff and so we under the court's ruling we'd have to look to california law to see whether the successful disclaimed ensured to recover and once that ruling was made then ironically the costs were locked in at sixty six thousand one of the things that i found very curious when you follow the state action pre removal it seems to be very clear that the jurisdictional mel was satisfied by long easily is that right or wrong in other words the case hadn't been resolved at that point i believe that the i'd have to check the timing but i believe in our own march judgment had been entered as to all of the defendants but that was the horse the record of the federal claim in other words i don't want to consume your time with this but it just strikes me is  question is far more easily resolved maybe not than having to delve into maryland declaratory judgment law oh well for more for you because you were seeking clearly more than seventy five thousand dollars at the time you follow the state court action but we didn't seek a specific amount in that but clearly you were clearly had there been then the judge we're keeping our options open but the case i think is crystal clear that you judge removal at the time of the removal and at the time of the removal summary thousand dollars on a debt of some sort of some kind all right a few days after the complaint is is is filed but before it served the debtor defendant pays one hundred thousand dollars removal is what the case so in that case i think if the check hasn't cleared by the data removal even though the payments been made anyway i don't want to take the why are you and then with then we probably move into those revelation cases we talk about is it something that could never happen or  stop you not pass go we need not reach the other issues the other issues i think are so often flee important and interesting and then again daniel francis the mother was only sued for assisting is just of a claim of assisting clearly in the complaint and appendix page thirty basic tenets which i've listed but the most important first that any conceivable possibility of coverage has to be resolved in favor of the plaintiffs second similar maryland in the cochrane decision you don't just focus on the pleadings you actually said case in california the court very clearly said you don't just look to see if the statement was voluntary the voluntariness is not the same what you look for is deliberate and calculated and i think that language actually came francis daniel francis indicating that they did not deliberately try to disclaim the plaintiff and it's very similar to the example used i believe it was in the mercy case of the speeding car the person who was putting foot on the gas pedal was deliberately trying to make that car go faster than the speed limit perhaps he was late for work or for court but he wasn't deliberately trying to run down that pedestrian in the cross walk here we did not have thomas francis and we certainly did not have daniel francis who again was only sued for assisting not for saying something false in direct knowledge we did not have them intentionally uttering false statements by about the tour point of rather what we had was a mother who asked her article she goes to the school complains that is the sense of the person who is trying to get to the appointment of her she's not trying to damage mr tower she's not trying to defame his reputation she doesn't have knowledge that really goes on perhaps  trusted her song statement perhaps she negligently overreacted and into a good enough investigation the facts but what she did was not go to the frederick post and say troy towers of the molester what you did is you put in the wheels of motion that fortuitous chain of got is why she talked to them respect with the evidence and the only evidence was she just wanted her son to be protected she wanted the school to take steps to protect her son had they been had there been a deposition had there been a discovery where frances testified yes i deliberately understood her i knew that these wheels are going to be put in motion old and we would end up in a prosecution we have a different case there was no evidence of that in fact the only evidence the court had with her statement that the only thing she did was contact a school for the school could protect her son goes to her motivation right well it goes to the deliberate and calculated intent to die whereas the california law that makes that distinction that's the problem it's a great argument but there's a long line of california cases that refute that calculated act and that's where we think the trial court respectfully erd it is great for the truck would actually recognize that maryland tort law should govern the outcome of this case but then it looked at all the california cases which simply label defamation as intentional act and intentional and we believe that that case is more closely aligned to this case because in this case we have an actual pleading of negligent defamation negligent privacy and even california law in the a c s case agreed that there is an invasion of privacy that can be negligent and that's the invasion of privacy we have here the invasion of secrecy not the invasion of seclusion and we focus mostly on defamation remember there were multiple counts so even under the california law that a c s case th should have been covered the stink in between negligent defamation and intentional defamation between the two states is huge defamation in california where we listed out has a different definition they don't use the term negligent in their if you can have a negligent or reckless disregard the truth so for example danielle thomas francis knew that or should thomas was a compulsive liar and he comes one time and says the ch assisted in the defamation of mr towers you can be at the favor in maryland unfortunately by simply not using reasonable care by having reckless disregard negligent disregard of the facts that would have led a prudent person not to republic or even publish the family tree statement and it appears that was that's what ms francis this is francis being sued for is or she has no firsthand knowledge there's no intent by her to say something happened all she is doing negligently at worst repeating perhaps an incorrect statement by her son and again the court below gave very little attention to the fact that there were two plaintiffs cases from the across the nation seem to be in accord with the  because under california law we still have the same rules you look at matters extrinsic to the pleadings and we look at whether the k the evidence prove that it was deliberate and calculated as opposed it was a voluntary statement but one that was not intended to similarly the court relied heavily on the your case but if you look at the stellar case stellar indicated that because the appellant in that case provided no evidence that this was an accident this was not intended so we think stellar actually helps us because that perhaps were sacred perhaps we put this chain of events without really knowledge fortuitously to use that term but perhaps we were that speeding person but we weren't the person who intend to run down troy towers and in a crosswalk we were the person who accidentally negligently but perhaps recklessly but all matters that don't fall to the deliberate calculated intentional level that's what we're what my clients tick and they get to you from california from d c you has the same holding these other cases that have the same only and in fact all state itself and that louisiana case that we saw your lights on there mr brown you did reserve some time yes your honor sir will we serve the rest why do you want this indicate though that with respect to the amount of controversy issue the again maggie who is the underlying case from the circuit from from that u s district court from maryland which really is if you can't use speculative arguments about what the fees may have been at a minimum there should have been a hearing we may have well been willing if that would have been willing to cap or fee so that we never got to the seventy five thousand dollars point and again the time removal we were locked in at that sixty six thousand dollars a year as a regular the reflects very much corporate cox on behalf of allstate insurance company there are several issues but i'd like to just briefly talk with the jurisdictional issue i don't think there's really any question that at the time there d j complaint was filed they were looking for three different categories of damages one of them was clearly to be indemnified for any judgment that would be rendered against them attorneys fees incurred in the declaratory judgment action and attorney's fees to be incurred  fees in the toward action in attorney's fees to be incurred in the declaratory judgment action all three of those should form part of the amount in controversy analysis and if you consider all three of those things i believe that it vastly exceeds the seventy five thousand dollar other words between the following of the complaint that that judgment action and your removal the circuit court of frederick county rendered a judgment in favor of  plaintiffs here where they could have had an appeal correct that could have been reversed right and that complaint asked for an duty correct so just because a judge found no disputed material fact and  granted the policy is only one hundred thousand dollars so it makes the whole hundred thousand dollar policy at stake that was the principle argument you didn't even need to get to the attorneys fees issues but the court obviously the lower court did by the way there was no appeal correct there was no appeal but you didn't know that at the time that you remove the case correct so with respect to the substantive issues i don't think there really can be any dispute the california law applies this was a california insurance policy on the face of the policy it says courneya there is a choice of law provision in the policy that says the policy is being issued in a court of california law the principle risk which was in apartment was located in california the insured in your frances was located in california the policy was issued to her in california the only remote connection with maryland is the fact that the alleged tortious conduct occurred here but for purposes of the contractual analysis which the essence of the case is the insurance policy now went as no relationship whatsoever to it and frankly the plaintiffs really don't argue that it does when they try to argue that wrong while applies and wrong what could only ever apply if california said we don't care about our law you can go ahead apply yours but they wouldn't do that and we cited a whole bunch of cases that stand for the proposition that had this soup and brought in california california would have applied california law so i don't think is really any dispute about that so the issue i do want to just one thing that is raised in the reply brief that really wasn't raised before or below is a i understand it which is this issue about danielle francis in separate claims being raised or being brought against her in the tort suit after i saw that i went back and i looked again at the torts and interestingly in the tort suit she is sued only in a representative capacity the tort suit is bro complaint itself they say they refer to the defendants and then the parents and next friends of the defendants they seek a judgment against the defendants again the minors the ice assume the plaintiff's lawyer thought in maryland that in order to sue a minor you needed to sue them through their parents so to claim that there was some super duty that was owed to daniel francis is interesting now because in reality there was never the potentiality of a judgment against her for what she did what would have happened is according to the complaint the judgment would been rendered against the son through her if in fact that was the procedural mechanism which the plaintiffs below challenged but even clearer as i pulled some of the court papers from that suit is that after the amended complaint which is the complaint that this court has a second a minute complaint was filed in that court removing the names of the parents simply because the kids had attained the age of majority by them and in one of the  so in so what the plaintiff acknowledged in that in a pleading was that the reason they filed too many complaints was the defendants who were originally sued as minors through their parents are next friends but who have since reached the age of majority and as such can now be sued in an individual capacity rather than a representative capacity so in reality there were no claims against daniel francis for anything they did so this whole argument that somehow she assisted if you could accidentally a system body really is irrelevant so the focus has to be on the claims against her son the claims in the lawsuit while there are a myriad of causes of action the underlying complaint is that they made deliberate statements and under california law since  forty from the hogan decision on california appellate courts have consistently said deliberate acts are not accidents and while it is and i suppose if i were on the other side i would argue too that the word negligence appears in the complaint in california it doesn't make any difference the word negligence appears in toward complaint because negligence doesn't equal accident all negligence is is a legal theory and that's fine and while the plaintiffs try to draw a distinction between california and maryland law and defamation i don't see it because in both places you can be held liable for negligence because you either knew or should have known of the falsity of what you said but that doesn't remove the fact that you have to have deliberately set it and that's the basis of the complaint they don't allege in the complaint nor the plaintiff's alleged now that the accidentally made these statements and how do you accidentally make a statement like this you don't and judge quarrels below in his opinion actually i think in a footnote ended up finding a case where there was a negligent defamation which california does in fact recognize where the example was you might negligently defame somebody if a thief steals a letter that you wrote with defamatory statements maybe that would be negligent defamation but that's because you know there's too many steps removed here or the statements were made they were made delusional they were made to deliberately there's no disputable that that's what the talk complaint says in fact that's what what else are they going to say that's true and as you pointed out in california motivation doesn't make a difference with respect accident intent doesn't make addition with respect to accident in maryland the analysis is different i'm not convinced the conclusion would be different but the analysis would be different but in california it's not it's clearly an accident is not deliberate conduct i believe that the plaintiffs said that their best case is very sour and that a sour is a federal district cou opinion in california in one thousand nine hundred two that has been roundly criticized in california not the author of that opinion and i believe that that she wrote that opinion probably in may of ninety two then in october ninth or november of ninety two she comes back she is asked to visit a very very similar scenario and without saying that she was wrong issues another decision that is clearly the opposite which basically follows the whole line of california authority and subsequent cases when referring to verisign i would say this nearly twenty years later that our has not been followed is frequently criticized or distinguished by federal and california courts alike because that is they were appears contrary to the clear weight of authority which holds that an insured subjective intent is the only other issue i believe exists with respect to what judge well actually i don't think there are any issues that exist presently with respect to the issues a judge quarrels actually addressed because he ruled in our favor on the accident issue he didn't have to get to the issues of whether or not there was bodily injury and whether or not the exclusion applied because this court can obviously grant summary judgment or affirm it on any ground in the record i'll just briefly address those two issues bodily injury is defined in all states policy as physical harm to a body that's not allege in the complain they allege at best they allege medical expenses that does not mean bodily injury doesn't mean physical harm the evidence that the plaintiffs produce a year later based upon a deposition of the plaintiff in february of two thousand  which is about a year after i understand the plaintiff's notice of that underlying suit he was deposed and he was asked about physical problems he did talk about impotency he mentioned that some people might think he had a heart condition those allegations were never incorporated into the complaint so they're irrelevant for purposes of duty to defend and there's no reason to believe that that's what they were furring to as medical expenses in the complaint because when he was asked in the deposition have you ever seen a doctor for either of those conditions he  so there is no indication that the tort plaintiff ever believed that he had physical harm to the body so there was no bodily injury and lastly the also it's exclusion applies in two conditions one where you have actually intended injury we don't have to even get there the second issue is if they reasonably expected injury from intentional acts so it's an objective inquiry and based upon all the evidence fit sort of related to the accident issue there's no reason why anyone could not have foreseen whether the allegations were true or false that there wouldn't be some injury if they were false he'd be injured if they were true he would be injured so we believe that you could affirm summary judgment in any one of those three bas read the law that seems to be the best analogy washington applied only here i look for cases where before removal but after the complaint was filed there were some disposals motion in the underlying case i couldn't find any but my analysis is that what you do at the time of removal for purposes of determining the amount of controversy is to look prospectively at the potential peculiarity effect of the declaratory judgment and if you're looking at the potential peculiar effect one of the potentials is if the appeal period hasn't run that a tort plaintiff who claim has been disposed of in summary judgment may in fact appeal and i don't think there's any dispute that you're looking at the potential peculiar effect but to answer your question i couldn't find any case that was exactly on point thank you thank you very much mr cox you have some time remaining  the last question the maggie knew court and saw in many other cases warned against the danger of using speculative evidence to try to predict an amount in controversy and every taken to its logical extreme under maryland rules of procedure tomorrow troy towers could follow a motion challenging that judgment on the grounds of fraud in the state i believe those can be filed any time a similar rule sixty motion here would be yours so are we supposed to believe that because that appeal could be to reconsider her motion to set aside if you file that tomorrow do we just live in a vacuum for five years or until he dies sort of goes back to the first bill this morning what is the maximum limit we have i guess it's the demise of mr towers like it's ridiculous that is the definition of speculative events that could happen the future we know is this core point out there was no appeal the judgment and roll judge became a final judgment we know what the lot in some of the time was and that wasn't enough to trigger a federal court jurisdiction certainty if we put in writing if i say the i'm at a maximum amount i will ever charge five thousand times the time that i don't leave because we were at that point but had we had a hearing i believe we would have been at that point if that was an issue we would have readily concede we raised it in our pleadings but we also indicated that other grounds where we thought that that amount had been triggered at the time the for move well you had not stipulated to the attorney piece is that right we had raised that we likelihood that we would we were under the belief that we're going to get a hearing so there wasn't a written stipulation there wasn't a certain stone stipulation as to that second of respect a choice a lot i did want to point out the shippers case and the shippers the case as indicated california the  execution of the contract the black and white concrete nuts and bolts terms of whether a contract was made that's covered by the place of contract so maryland law would look back on the policy had a clause in it that indicated you would it anticipated matters that would happen outside t the shippers case which is the california choice locate does indicate that with respect to the interpretation of the contract that's governed by the place of the contract was to be performed and in this case in the modern age all state was not under the impression that nobody would ever venture one foot outside of the state of california and we know that by their own policy which talks about acts it happened outside occurrences that happen outside the jurisdiction so from that point of view we strongly believe that the maryland renoir argument should apply because again this is not a pure contract action flicks not a contract action at all this is an equitable action that should've been decided by a court of equity going back to the days of chancellorship so this is not a strict breach of contract action we have to look at the place where the ink was put on the paper that's what we actually argued you could make a rational argument illinois law should apply because somebody put the computer stamp of the president of all state and deemed that they have happened in chicago or guess the north what is warned against is that use of labels the california case law is clear because i heard numerous comments when we look at the pleadings we look at the pleadings we start with the pleadings with then we look at everything beyond the pleadings so for example one mr towers testified that he thought he might have high blood pressure he was in for or that he had suffered impotence we can look at those maps to address that issue was a lower court advantage but more importantly go to the very cases and repeatedly in the  they said that intentional conduct equals deliberate and calculated conduct there has been a no evidence whatsoever in this case that there was deliberate and calculated conduct particularly not when measured by the test of california courts which comes from also adopted that standard of the no conceivable grap california coverage losses every bit of the doubt must be given to the insured with respect to the duty to defend every conceivable argument or if there is any conceivable grounds for which coverage can be applied there must be a defense now going in demi can be decided later but the defense must apply up for court without a hearing without any evidence to decide that what thomas francis and danielle franc both of which were identified as point is in our motion below both their acts were at issue that what they did was deliberate and calculated as a matter of law with no evidence with nothing but the pleadings against them which is simply something our opponent phrase and with evidence from at least the plaintiffs in this case some cells that what they did was simply a mother's action to protect her son and her son's actions to stop being molested those are voluntary actual three those are not deliberate calculated intended to defame mr towers nor were they deliberate calculate to invade his privacy those are simply actually get the school to intervene and stop what happened thereafter was outside my client's control whether you want to worry when a body sure foreseen that that's a factual issue that this is instinctive is somebody about to smack somebody's kid and you stop their hand this is a stink as we use maybe a poor analogy i think somebody stealing some i say stop thief i'm not trying to destroy that person's reputation i'm just trying to stop what's happening