the exclusion that the district court found applied in this exclusion appears on the th page of the insurance policy two thirds down the page and the title of said exclusion or said page does not list exclusion at all and that the wording reads as follows this insurance does not apply the liability of the owners and or less source for bodily injury or property damage arising out of a design or structure a design defect or structural maintenance of the premises or a lost cause by premise defect now the district court found based on california civil code section two hundred and eighty four that the condition of the field was a design machinery or any other similar object movable or immovable when constructed substantially in accordance with this design inherently unfit either wholly or in part for its intended use of for which him rent impairs or renders the use of such a structure equipment machinery or property dangerous this is the field i suggest to you does not fit this definition at all it doesn't fit the definition of premise is the fact well the it is a premise i would agree with that but it is a defective the answer is clearly in our view it is not defective  what is a premis defect in other words if you take it and say it's defective because there was no fence around the field i would suggest to you that's not a defect that may make it dangerous but it's not defective the field which used for thirty years without incident and so is that defective i think not a council mewe in your complaint you essentially you talk about a negligen failure to maintain the premises or negligent failure to warn about a danger doesn't that doesn't it just follow from those allegations that there was something wrong with the premises that the premises were defective in some way i mean isn't that just the logical conclusion of what your allegation is well st of all obviously it wasn't our complaint well i understand but you're in the underlying complaint they allege obviously that the field is defective there's a hole in the field which they've later abandoned that they alleged it was defective because there's no fence around it and they alleged it was defective further with that if you look at page nine of ten of my really other series brief you'll see that their test is not the test in california for when the duty to defend meet i still not sure you've told us what you think premises defect means if i'm if i sell somebody a house with a staircase with no banister no value no railing and they fall down it is  fact you know it could be but but my point is that you can put premises defect in there and you have to be clear and concise what is the purpose is defect is it any of the things that are set forth in the in the complaint didn't have a fence on it and then you have to look at what's the purpose of the field and does it include base around it for spectators it should make it then defective if you don't protect those spectators but i and i don't really see a lot of discussion about like how how does a field defective well we don't think it is defective what what we think and what i was the lead trial lawyer so i have some knowledge of the case because i was trying to guess mr seeney and we started trial and the point being that what occurred in this case and it's in the record in the our oral argument before the district court is that this seventy four year old gentleman turned and went backwards and is and was running backwards towards the embankment and his eyes were up towards the ball that had been kicked out of bounds at the soccer field and then plantar to what is said in my where the other series brief he did not go but that's the question i'm not sure we can retry this coverage case the question of whether or not well what what he did and what he didn't do the question is whether on the face of the complaint there's a c that we're discussing here about what premises defect might mean is that that elise suggests there is the potential for coverage and if there is that potential then the insurance compan should have stepped up and defended your client this is a problem which are arguing that's exactly the argument the argument that their argument is they don't need to defend until and unless it's proven that there is coverage the cases horace mann and gray versus work which interestingly enough they don't even acknowledge exist they're not in their summary judgment papers they're not in their briefs here and that sets forth the standard that your honor just suggested if there is a potential for coverage they must step up and defend they of course did not and my point is if there is a defect in let's say the defect was because we didn't put a fence around it and let's just assume that the design when it was built and we don't know whether it's natural or it was built in their brief they say well use your common sense your common sense is not experience or covenants but in any event the plans say put a fence around and they don't is that a design defect and we concentrated on design defect your honor because that's what the district court did but i think your are correct and that is based upon the issue that there was a potential for coverage which they simply ignored because they didn't want to taint defense counsel so that i understand the facts of this case correctly they did cover the soccer club and provided the defense they provided the defense right soccer club and soccer club had leased the premises from my client oak park complaint the allegations of the arts complaint that were asserted against opar were that this premises was defective and that defect causes injury if they were not able to prove that there was something wrong with the premises they would not achieve a liability judgment against a park where the district court found this to be a design defect never reached the premises defect issue crowd both were raised right right ok and i'm reading the definition in the civil code i assume california law can applies here yes doesn't sound like a design defect to me well if you look at the exclusion in the philadelphia policy remember that this doesn't seem to match up this case does it well i disagree actually if you take a look at the pictures of this soccer field this is their retaining walls along the bottom of it that lead into a parking lot or a baseball diamond there's a thirty degree slope with bushes planted along it that is about one hundred dollars yards long that's the amount of the entire way there's a flat top where the soccer or other activities would occur there are concrete steps built into the hill with a handrail to get up to the top this was a designed structure was intended to be a field that could be used for various outdoor activities it was apparently designed without a fence along the top edge because that's the way it had been for at least thirty years that was the intentional way that this structure this field was used for many many years of your view of structure is that it's the field that's structure right and the retaining wall is the field the structure with it well the field is the field is a field know you think of structures as something you build i don't think a structure has to be only a building there were retaining walls and a slope that was built clearly by humans if you look at that picture it's not a god made hill that there was a super taining wall at bottom and it was and then i've no doubt the retaining wall is a structure but right nobody's claiming in this case the retaining wall was defective but your claim is as i understand it is that the field the entire so a design defect there's right so there you incorporate the statutory definition well i would like to focus on this step of the exclusion itself a little bit here nobody is premises defect to mean sure so what i want to talk about here is the ect alleged in the complaint that was the theory of liability against opar that this this this field was either designed or had a premises defect and that was why opar should be liable for the injury that mr york suffered if there wasn't something that opar should have seen was wrong with their premises and done to prevent this sort of an injury then they would never be liable to mr ayres me ask you a question about the c g l policy i because i used to do context of this case that when an additional insured obligation maybe to an owner of land that's being rented by the soccer club to see actually into sure that philadelphia has no intention to provide coverage that additional s for something that's wrong with the premises before the soccer club shows up before the soccer cup club showed up when if he simply just to say that i mean i mean if you'd said look we understand you rented it to them and we're not going to cover you for anything that arises from the condition in which you entered into them will only cover you for for things that happened thereafter that that i think that would be a very clear exclusion otoh i think that that's what this says we're not going to provide coverage to the owners of property for bodily injury that arises out of a design defect a structural maintenance of the premises or a loss caused by a premises defect council and why you're you indicated this is a specific provision crafted by your client but they never chose to define design defect or premises defect what why should we allow this provision of the california code for sort of drive our analysis of this case is it's completely extrinsic to the contract i understand there's an attempt to try to find meaning in the phrase but what why should we say or agree that this is the only sensible source of meaning california code which really has nothing to do with your insurance contract i don't think that is the only source of meaning for the for the language used in that and what else i think the plain language itself is what is what controls here we have you know plain language that clearly states that the coverage is not going to be available to the owner of the land if the bodily injury arises out of some sort of defect with the premises whether it's a design defect or premises defect or something wrong with the maintenance you know there's an or here there's several things stated and here the only allegation of liability against all part was that there was something wrong with this premises that they should have done something about prevent his injury th allegations in the complaint i think judge her that you pointed out there was a negligence cause of action against the soccer club but no part was not named in that one the only allegation against a park was that there was a dangerous condition on public property the way that the ets complaint the plaintiffs intended to find coverage or liability excuse me against opar quiz to prove that there was something wrong with this premises that they had rented to the soccer club if there wasn't anything wrong with it if they're correct that it wasn't  e they didn't need a fence there were no holes then they would not achieve any liability what i don't want is the writer cover that if something happened during the meet that was caused by something that the soccer club to maybe th soccer clubs covered they've got to they've got a primary contract of insurance you get a rider to cover the school district right what does it cover if something were to occur during this soccer game you know a referee rammed into a spectator or something and they way sued the school district and everybody in there would be liable for that with them but they might be sued and they would want to defense to that if something that these soccer club did that caused an injury or there the fact that there they were there caused an away sponsibility for any naked tents or risks associated with any bodily injury that occurred and that was an automatic part of participation as you had to sign a release that released the premises t field the organization and so that doesn't strike me as being i mean that would make what you're saying meaningless i i i don't know whether or not anyone had to sign waivers to participate this every kid in every league ok the west valley soccer league i and my family know that signing a waiver doesn't prevent people from suing happens all the time and you know whether or not those waivers are forcible you know all those sorts of things could an accident happen at this field that wasn't caused by the premises itself and could someone be sued could the school district be sued for that absolutely you know can we imagine scenarios of things that might happen levy oak park police a question that judge act not negligence of the property owner themselves we didn't directly issue a policy to the property i'm sure if they had if the complaint had said and school district you're vicariously liable you know they wouldn't have been rush baseless baseless claim you would cover them well sure there'd be a defense obligation there if if someone is that your goal district and if there were a judgment under it you'd have to pay it right short and if that if someone sued the school district saying you know that the soccer club has been running this in a dangerous fashion for many many years and you didn't do anything to stop it or you know something like that where they're being held liable because of the conduct of the soccer league you know then this would absolute provide coverage but what philadelphia did not intend to provide coverage for is for the owner for their own premises for it for the fact that the premises itself was dangerous or wasn't being maintained in a proper whether it's dangerous equivalent to defective in your mind i think it is i do think it is i pursued went to trial and and it was proven that he has injury wasn't because of a dangerous condition but rather because he has his own inherent lack of balance that he fell down it was his own right and so that's one of the arguments of parker's been saying all along that it was really this gentleman's own fault that he got injured well if that's true once again there wouldn't end up being a judgment to be indemnified right but you still would have had to get you to defend no i don't think so the a somebody makes a frivolous claim that falls within your coverage you have to defend free may you you make them untrue you made it how you know it's not true you may not have to cover it right but but if we're only talking here about thirty to defend that's correct so why isn't the facts in this complaint fairly readable as say look school district you were negligent in not putting a fence around this before you sold it to them that's really what they're way and made maybe you didn't live or did it in this condition but by not later putting a fence around it you're the ones who caused the accident with that the cover no it is not because it's a it is about the condition of the premises itself now but you said it you should have knowing of that put it fence around it after they see after they became after it became operational that sounds to me like an allegation of negligence as opposed to premises liability well it certainly is an allegation of intentional question i know you over time the district judge but so we think this is not a design defect should we send it back to the district court to see if it's a premises the fact i think that we've all of the facts that this is a premises defect have been presented to you i if you look closely at the exclusion if talks about the design defect and excluding property did property injury or property by for injury or property damage and then it says or loss caused by a promise defect it doesn't find what the fine what loss is it doesn't equate loss to bodily injury nor does it equate it to property damage it just says you think the bodily injury exclusion only applies to design defect i do i think it does in the language i think bears that out so you wouldn't be covered for it so what about a loss relating to design defect not covered too carefully to my really had a serious argument there is no insurance here there's not they take away all the coverage and they equate dangerous with defective as we point out in our brief there is not the word defective in the complaint at all we point out for example that our brief you can argue that the grand canyon is dangerous because you can get right to the edge of it but it's not defective you can argue that a handgun is dangerous but as built it's not defective because it's built according to the planet fires one is supposed to fire and it doesn't fire when the safety's on the trigger is not pulled so i don't believe that dangerous equals defective as we've put forth and i've read you can be found liable for either one the point being that this case they decided not to defend and they course didn't defend and had to the extent that to my client expended over a one million dollars in defense of this action and i suggest that their denial of duty to defend was