subject to questions i think i'd like to reserve for minutes but in reviewing what the district court decided here it struck me that from our perspective there were three fundamental  first one really deals with the c p a itself and i'm not sure when we're dealing with an insurance policy interpretation issue how much relevance the legislative history has because given the notion that you interpret an insurance policy from  perspective i don't know that we would expect a lay person to go analyze legislative history but we don't we don't need to do that here do we i mean the an act is is pretty clear that the commissioner can make rules quote as necessary in the interest of privacy rights that the sections intended to protect that section two to seven which is what   manual sued on her right that's correct and what i would say is with respect to the district court's decision the portion of the t c p that the district court quoted is actually the wrong section the district court or the section i quoted murong audio calls to cell phones where you have to pay the additional price right and he says throughout his complaint paragraph number one he says that the lakers negligently contacted the phone in violation of the t c p p a invading his privacy second paragraph two he says of t c p it was designed to protect the privacy of citizens like him paragraph thirty one he says that the leakers illegally contacted the plaintiff causing him to incur cellphone charges which he had previously paid in there by invading his privacy paragraph thirty eight he alleges that the maximum statutory damages in an individual action for violation of privacy are minimal so it seems like he certainly sued under two to seven it certainly seems like two to seven deals with the invasion of privacy it seems like the complaint very simply put dealt with  his privacy rights and it seems like the policy excludes coverage for claims based on arising from or the consequence of invasion of privacy that all supports dismissal of the case and we don't need to get in i mean why do we need to get into legislative history and all these other things when we can simply affirm the district court on the decision that he made she made i'm sorry well your honor i think i don't disagree with much of what and he was reading what you allege what a man you and how it relates and how we then related it to the c p a which was all about invasion of privacy well it's true that emanuel did put but emanuel also put allegations that were not related to invasion of privacy in the complaint so for example in paragraph thirty one of the complaint there is an express allegation and it's in the texas record of page two forty three there is an express allegation paragraph thirty one that the clasp is damaged because it was cause and i'm going to quote to incur certain cellular telephone charges or reduce so your telephone time for which plaintiff and the class members previously paid and then it goes on and invading the privacy of said plaintiff class members well it seems as if i was going to read that and invading the privacy that what he was suggesting was that their conduct prior to that invaded the privacy well i think there's two pieces to this in the all i think you're going to allege two you're going to tell me that there are two but if i read the complaint and i even read the words that you gave it seems to me that emanuel's complaint talks about invasion of privacy he's not limiting he's frankly seems to be putting is right on  you characterize is a property interest or not which some courts have done he clearly has alleged that he incurred unnecessary expense and the charges for the receipt of the text and that or you suggesting he's alleging an action outside the t determine whether there is if you will a cause of action in the t c p a that relates to other than privacy but what i'm saying is if you look at the legislative history and there as and he says we don't need it and i thought you were greeted with  i don't need to look at the legislative history i'm not sure we do need to look at the legislative history because if you simply look at the allegations of the complaint and that's why we cited cases like pension trust the ninth circuit decision and mends eric and ticketmaster because those cases recognize that all it takes is a couple of words in a complaint and never understand that it takes a couple words and i understand frankly because i was often in your spot trying to get insurance companies to pay or against you trying to keep my insurance company from paying all the time i was in private practice but the bottom line is if i'm going to allege inaction and i'm going to say that the insurance company should upon reading that complaint suggest there is an action and it's all under the t c p a and we're an invasion of privacy i thought the whole thing said invasion of privacy now you're saying it says two different things then it seems to me that you've got to look at the c p a and see if it ever imagined a complaint based on those words and when reading the t c p a we can either say well it might be an invasion of privacy of my be a nuisance that's all or isn't the t c p that is not all there and i want to know what that cause of action is in my boat having used every benefit of doubt saying you can do is you can divide that sentence that you talked about i'm trying to find out what is there in the t c p a would take that outside of the news context it's not a trespass the t c p doesn't deal with trespass it doesn't deal trust masonically with that and not only that but you pled in your complaint that there would be no personal action  invasion of privacy i don't think that's determinative because i don't think titles control there's no claim for nuisance there's no claim for stealing property or for good unfair he cannot and there is no complaint for wanting economic damage that's not the case called economic harm i agree with that iranian the theory disallow action for example paragraph five there's the direct quote out of the seventh circuit decision in south that that quote deals with automated calls to cell phones adding expense and i would submit if you look at the eighth circuit but isn't that a nuisance theory i mean i guess where we're having a difficult time and i sure judge smith's concern is what do we call this animal if it produced damage you've told us what the damage is it's i had to pay for cell phone text messaging or minutes that i didn't agree to pay for but to me that sounds like nuisance well let's assume for a moment played yes and what i'm suggesting is if you're going to go on a new theory a manual didn't plead it if you're going to go on a per invasion of privacy he certainly proud that and that would get the insurance company out so i'm trying to say if you really want to go on a nuisance stary where did he plead it and what makes it such that his pleading wasn't appropriate well he pled he did use the words invasion of privacy several times absolutely and we don't dispute that invasion is you've got to come up with something more than economic harm here you've got to come up with a theory of liability the theory of why bill is the difference with properties that is recognizing discussed in some of the cases we cited where it's an injury to a right and property in this case is intangible property but there's no requirement in the policy that it be tangible we're not dealing with the use of time or think in fact paper that comes up in those cases is an interference with tangible property but he's got a property right in a plan he paid for that's affected by them so he's suffering and that's one of the things in the t c if you think that's adequately played in this complaint for purposes of the duty i mean what we're talking about is a duty to defend that the insurance company should read that complaint and that it would be within their realm of possibility to suggest that that was something they should defend yes under a t c p a action which the cases  as is not have anything to do with that except there's a couple of say that has to do with nuisance so then they would go through and reviews complain and see if he's adequately played a nuisance or if even even close to pleading or if even thought about pleading and they said he did and then where we are that's what we're arguing about because were they wrong or were they right they were wrong and i know that you're argue well they have expressed allegations in paragraph five and thirty one that deal with the whole point of the subsection a manual suit under which is the cost shifting shifting creature so then let's change if in fact it's that force and if in fact i've got to make those kind of determinations how can there be bad faith in this case well because feldman says because the key to a bad faith claim is whether the denial of the claim was reasonable a bad faith claim should be dismissed on s judgment if the defendant demonstrates there's a genuine dispute as to coverage and it seems to me we've got a genuine dispute if i agree with you well if we're talking summary judgment and this was the record i would agree with you but we're not talking summary judgment we've had no opportunity to get to the claims files and see what they were really thinking when it comes to bad faith but i would not be going back to one of your earlier questions i think universal underwriters the eighth circuit decision that we discussed a that's the basis for the damage claim is the cost shifting here we don't have a residential telephone line involved we have texting we have cost shifting that's the basis for the damage claim here and that's what we're saying if you wan i'm freely admit i'm no insurance expert but based on everything you've said in your dialogue with the court it seems arguable that the complaint alleges an invasion of privacy claim and let's assume we are able to glean from it emanuel's complaint a nuisance or a  intentional interference with economic opportunity claimer whatever he said it was let's assume we can find that the terms of the policy quite clearly say that  claims based on arising from or in consequence of invasion of privacy are excluded now if if there's a blend of claims in the complaint how how does that work i of privacy claims or how to how does that work they don't get out of there due to defendant or cases like horse man even if the predominant aspect of the lawsuit is not covered they've missed fand and defended entirely to the california supreme court decision in state of showing that any portion of the manuals complaint alleges anything beyond invasion of privacy then we have to reverse that is our position on it goes back to the california supreme court decision in applied to a policy that is unambiguous and it take exclusion for any claims for invasion of privacy and does so not only on its face but with the broad language of excluding any claim for invasion of privacy or anything else based upon in consequences from or arising from a claim for privacy or invasion of privacy that's all that needs to be done in the district court did that analysis recognized from no less than united states supreme court to the ninth circuit decision in satterfield to a multitude of federal court cases to state court cases as involving separate apart additive it's based on what congress was trying to a protect when the purpose of the t c p is absolutely crystal clear if you look at the purpose of the act in the legislative histories and it's it sixty and seventy eight both of those were expressly designed to protect privacy so the economic harm was added by just let me give you my hypothetical i am in a business and my fax machine is is buried in junk faxes a business doesn't have personal privacy rights like and like a person does so isn't that an economic injury that is suffered from a violation of the statute that produces that case for different harms i think paper taking a space to get high other factions couldn't come through ok well mr pace which so is that the same issue is present here with the t c p a and let's change the facts to say that judge tallman business phone which may be a cell phone where the case may be is overwhelmed by  advertising in those types of things a corporation does not have an individual right to assert an individual invasion of privacy claim isn't as he say an economic question and i think i don't want to speak for my colleagues but i think the question is is a corporation out of luck anytime  individual right for their claim as a corporation to the extent the corporation asserted only a t c p a claim and because that claim is a right of privacy claim i think they are out of luck they have additional harmony's could never could never get insurance companies to defend them on t c p claims that's why i think the stretch the hype that it will get stretched because that doesn't mean a corporation can't bring in additional cause of action under some other s mr passive suggested the loss of intangible property but let's say your fax machine is tied up because of all these junk faxes so you can't get legitimate work related facts or things but wouldn't that be the loss i understand you could have a lawsuit on the disputing that that could be a lost a situation but i wouldn't have violate the statute i guess is what i'm asking because the statute is a statute to designed to protect privacy that in of itself i think you acknowledge that the company could bring although i guess your position is that's a different section of the statute that specifically addresses junk facts it's either different different section of the statute the junk fax protection act or possibly an entirely different claimant or say state law or some federal law which i'm not aware right here but simply the issue here is did that did this complaint do that my argument would be that is impossible to read this complaint as doing anything close to that well my worry and that's why we got to the point i guess with you with your opposition counsel mr presage when you look at prayer paragraph thirty one plaintiff suffers a reduction of selling cellular telephone time for which he and the class members previously paid whether that really goes to a t c p a claim that is based in privacy or whether there are some other allegation there in which would be covered by the t c p a which is not privacy and i know there's and language there and then they talk about privacy which seems to me to indicate they were always talking about privacy but he's arguing no judge look very carefully at what they pled and that's not privacy privacies the additional thing that would also be a privacy action i don't how do you respond to that because i tried to ask him questions about that now how would you respond because the invasion of the or the property right harm does not stand alone and cannot stand alone under the t c p a which is the only thing we're addressing here congress clearly did not set out to protect people's phone minutes if and this is why i do think that the space legislative history is important in terms of how we look at the statute what did congress want to do there's a great deal of this history it's in the record and again if you just look at the purpose of the bill sections on both the senate and house reports it talks about protecting privacy rights so i don't think you can parse out one little additive harm and ignore what really the bill was directed at  here as its use which is a citation to legislative history we would look to the common ordinary meaning of the warden you since not a legal harm but a common ordinary meaning which means annoyance and we have words like an unwanted or intrusive things like that which are all words that i think are highly common with privacy violations is it so that manual was not deprived from the use of his phone with this text i would assume from his a fair reading his complaint that he a call came in and it used some portion of a stone so yes well but i mean kate you get taxed at the same time you're using your cell phone your i phone i can now i don't know if mr emanuel could at the time i can only look at the complaint and i think it's really important i can answer the hypothetical but i think it's very important that we look at it to defend what does the complaint say and what could be a reason for the complaint and that i think is what this insurance company did they said this is a we have privacy violations written all over this it's purely for t c p so i don't i can't speculate what it means i can only say what it insurance company should do and did properly here exclusion doesn't do what it should do not repeat that progress three four five and thirty one of the complaint i think are clear that this just isn't about only invasion of privacy and paragraph thirty two express the discla any claim for personal injury that would be a privacy claim that's been disclaimed by the plaintiffs now if you look at horace mann and you look at montrose and more importantly you look at the ninth circuit decision this court's decision in the men's eric case exemplary of how you interpret the duty to defend in this context in men's eric is the decision makes clear that complaint had something like eighty paragraphs in it and there was one sentence in the complaint one sense that said that densmore then the doors drummer felt like he didn't demeaned by his replacement by the police's drummer and that the ninth circuit concluded that you could infer from that the possibility of a motion or distress and therefore that was enough to trigger the defense duty for the entire lawsuit we've got a lot more in the way of allegations here that go to economic damage an interference with intangible property rights and that is what i think is the term