i will just jump in to address the two questions at the panel has asked that we address and the st question is do any of the issues in this case warrant transfer to the california supreme court occasion certification of the california supreme court and the short answer to that is no and let me explain why a transfer or certification is warranted when the decision could be outcome determinative in this case we have four distinct issues we have the breach of the duty to defend and on the personal injury slash false imprisonment coverage breach of the duty to defend on the accident coverage and then separately the breach of the duty to indemnify on the personal injury and the brief of the breach of the duty to indemnify on the accident coverage the court is  ruling in plaintiff's favor on any one of those issues mooch the others so the panel could find that state farm breached its duty to defend soley on the false imprisonment personal injury and then reverse on that and the other issues are moot but if we think that that question turns on an unresolved issue of california law then are we back where we started about whether we should have the california supreme court answer that question let me address that specific provision and that's so the fall that there is coverage for false imprisonment and judged in otto correctly found that plaintiff had met her burden in showing false imprisonment and the umbrella under the and the umbrella pot policy then the burn switch to state farm and they had to conclusively establish an exclusion and there was only one exclusion they had to show the on contradicted evidence is that frank had a specific intent to cause harm under the policy exclusion but duty to defend in the policy the policy under the umbrella states that they will defend it's called defense they will defend claims of false imprisonment and the only exclusion to and i would agree with you for indemnity purposes but on the duty to defend and judge to not a correctly said this in his order i we agree with judge to not of that he correctly found there was false imprisonment coverage just an auto also correctly said that and thirty three dollars did not bar the duty to defend and that's why he went on to separately analyze it he relied on downey venture and we believe he was correct on that point which we believe he wasn't correct on was the finding that they had concluded that state farm it conclusively meant it's presumption is jacobs it into your argument there are three points i want to make with jacobs and the st one has to do with this defense duty in jacob's the insurance company actually defended his insured we have a case where the defendant is pointing a gun shooting and causing harm knowing he's going to cause harm to the victim and what did the insurance company do they defended him in the underlying action through a jury trial with a reservation of rights absolutely and state farm could have done that here the difficult problem for you what i would say jacob just procedurally what what state farm should have done here they should have defended frank with the reservation of right so here's that that's one way they can do it but i'm talking about the law with jacob said well st of all jacobs also and i think this is really important that the provision in jacobs was an accident provision it wasn't a false imprisonment so with the specific intent to harm it was an accident but i think the rd point with jacobs and i think this is what you're getting at judge wallace is this difference between the lish an old and cognitive incapacity and jacob suggests that w cognitive incapacity may may negate a willful element the lisha nal does not and in this case i would submit we have at least an issue of fact over over mr frank cognitive capacity well what about the what put nobody jacobs absolutely not because jake ups well st of all jacobs again the insured defended and then only after a jury trial when all the evidence was presented just to ensure then in a deck with tory relief actions said ok we've we've done our defense duty we've defended him through trial we don't have to pay this judgement because he had of the lisha nal incapacity which does not work discuss the duty to defend because the insurance company there are defended and but don't you need to show that there is this preconceived design to inflict injury yes on when the mental state is at issue which it is here state farm has the burden of showing there is this preconceived design to inflict injury and in this case frank's mental state is at issue and if his mental state is it issue they had a duty to defend which medals or franks cognitive mental state is at issue and i'll give you and i'll  give you a very interesting part of the record it's at three volume three at two hundred and seventy seven two thousand two hundred and seventy eight and this is state farm's denial letter and state farm goes through all the facts of what happened and these facts raise the issue with his cognitive defect meaning cognitive defect is i don't know what i'm doing this is the nature and quality of the act exactly i don't understand what i'm doing volitional and capacity  i understand what i'm doing i just can't control myself the facts in this case at least potentially is frank doesn't remember what happened he blacked out but and then contemporaneous he grabbed a hat off another woman and tossed it he is described as screaming out of control so i mean you may be on the show with this kind of evidence that there is at least a question about this this preconceived designed to inflict injury or whether he could even understand his actions but isn't underlying that some question about how california would treat intoxication like why isn't there a question that the california courts should answer about whether intoxication can preclude by state farm and they said intoxication is not a defense we cited twenty nine dollars b which says evidence is california law for criminal law evidence of intoxication is if there is no duty to cover it all there is no do you defend you agree with that not necessarily a motto to you can't look at the duty to defend and in hindsight you have to look at the duty to defend at the time in a model to which is cited in our papers and that case the jury found on a question and that there was no coverage but the court said you know what you should have defended him even though ultimately there was no code if there was no question of coverage if it was very clear even from the start that there was no congress then there would be no duty to defend well in this case it yes i would agree with that however in this case we have a provision that says if i get sued for false imprisonment you're going to defend me and the only way you get out of defending me is if i can show state farm can show a specific intent to harm th i just want to make sure i understand your position in this jacob's decision which is of concern to me they discuss the american psychiatric association position that a person's voluntary capacity is not attributed to the voluntary ingestion of alcohol or other psychiatric other psychiatric substances doesn't that an affair with your argument when they go into this study and really make relian it's not binding now it's just a statement made by an association jake ups though and i keep repeating myself but the only reason we have all of this evidence about jacobs is because the the insurance company defended the shooter and then in a separate action dealt with coverage that didn't happen here frank was abandoned right off the bat frank had to do this in itself and if you look at the cases the j c penney case the horace mann case a lot of the cases that state farm is citing all teary minter rush as written in all of those cases that i just mentioned the insurance company defends the insured in the underlying action and then separately tries to see tries to disclaim because that was your point that if there had been a defense in a trial there might have been testimony that he didn't even understand what he was doing at all had no awareness at all absolutely just like an jacobs who you had battling psychiatry and psychologist you had you had all this evidence come out here thank you may please the court clerk holland on behalf of state farm general insurance company we believe that jacobs answers all of the questions that the court has the one thing i guess i can agree with counsel for appellant is that certification is not necessary but i will absolutely tell your honour's that we have no problem with certification because i'm very confident that the california supreme court would say what they have said over and over again which is that inherently harmful acts do not require and he didn't have some preconceived notion of inflicting harm the harm is imputed by the act itself j c penney says it is it every case since then have said the same thing over and over again when you commit an inherently violent felony or and are convicted those things are imputed to that person and jacobs answered the question about whether or not irresistible impulse could be an exception to five hundred and thirty three and the court said absolutely not but in jacobs there was it was uncontested that the person in frank knew the nature of his actions maybe he was so intoxicated that he was hallucinating or something and didn't even know the nature of his actions let me address that let's look at the evidence the judge didn't auto saw which included the complaint itself which showed that mr frank stalked the victim and then found her again twenty minutes later it demonstrates his ability it wasn't like he was flailing around unable to commit specific i mean maybe even maybe he thought he was chasing an elephant or something i mean how do we have any idea that given that there wasn't testimony not that i will i will address that very clearly which is that the only exception to five hundred and thirty three is insanity the california courts have said that over and over again there's no insanity plea here there's no evidence of insanity but more importantly there is a law that says that voluntary intoxication or ingestion of alcohol or psychoactive active substances cannot create such an exception and let me evidence presented to state farm that he was insane and was an allegation that he was unable to understand the nature and consequences of exact there never was an allegation in the complaint that there was no cognitive capacity i don't know we have to take the gages of the complete and true i agree that there was an allegation that the intoxication made him unable to formulate this and our position is very clear that five hundred and thirty three doesn't allow that allegation to have any significance and let me do we have any cases in california say the voluntary intoxication the is not a basis for cognitive incapacity i think that we do and i think it is that the answer to that is the jury instructions justice wallace asked about the comment in jacobs about the a p a standard for insanity but it's important to note that under all of the california jury instructions that deal with the issue of olen of insanity the court's jury instructions have one important caviar this defense of legal insanity does not apply when the sole or only basis or causative factor for the mental disease or mental defect is an addiction to or an abuse of intoxicating substances that's about the insanity defense in a criminal case right and so here if we're talking about whether some kind of massive confusion ken ken the question right i mean i mean if someone is drunk i think if someone's drunk and they're driving and they hit someone the insurance still covers that sure because well it depends if the evidence was that the person drove straight out somebody with the intent of hitting them then no five so there thank goodness i was drunk and has an accident so they're drunk on purpose but they have an accident so here if he's intoxicated on purpose but then does something that he has just no awareness of at all elephant how is that not some sort of i mean you already said the intoxication intentionally doesn't undermine it it's not an accident when you grab someone by the hair and dragged twenty feet and fired off six people there is nothing accidental about that conduct and well if you go that you're doing it right that it's not accidental well let's remember why he didn't know right he didn't know because  no thirty years of j c penney thirty years of litigation over this there isn't one hint that any court of appeal in california or the supreme court has been even hinted that intoxication would be an exception to five hundred and thirty three dollars imagine the impact every insured and every victim would claim that they were intoxicated to create an issue of fact and five  would be a dead letter almost and let's think about those cases every bar fight every date rape every fight after a baseball or football game all of these  conduct and rape and even mala station could be subjected to this exception of intoxication and of course it would be impossible to disprove no one tested mr frank's blood alcohol level in any timely way and in most instances that doesn't happen so all a person would have to say is i don't remember i was drunk and suddenly every insurance company would have to defend every intentional act like this even though there was absolutely no evidence that the conduct occurred because of anything that you could remotely call accidental and let's remember that mr frank pleaded guilty to the assault he pleaded guilty to the false imprisonment he didn't assert intoxication as a defense to any of that conduct and of course the reason was that he could not so so you're making a compelling policy argument but isn't the majority rule actually the opposite so hanover insurance tell me from massachusetts is the majority rule is that voluntary intoxication may negate the intent for insurance the majority well st of all the majority rule may well be that but the majority rule where the underlying statutory scheme has a five hundred and thirty three dollars like component does not have that exception and again i think the reason for that is obvious that if voluntary intoxication was an exception then those laws would have no meaning and i think that so i mean insurance coverage is not tenable in massachusetts and all these other states i mean how is it working out in those places i have i actually have no idea but the california supreme court has certainly never even hinted about such an exception it's not allowed in any form of criminal matter nor has it ever been allowed in any civil matter it's not allowed for instance in punitive damage circumstances there are many cases in california where the person claims that they were drunk and the question is are they subject to punitive damages and the answer has always been consistently absolutely they are every drunk driving case punitive damages are available and the court has never in california that you could undo conscious disregard even if you were unconscious that's the irony right junot damages requires conscious disregard mr frank says he blacked out he can't he doesn't have any evidence of his intent because he doesn't remember anything the only thing we have to go by is what he actually did which clearly was not someone falling out of a tree or doing something crazy while hallucinating it was very precise and deliberate and focused aggressive action of someone who was capable of the volitional conduct and again i think the courts have made clear that you cannot undo that by claiming that you were drunk i mean the california california courts have been clear and i would say given the frequency with which alcohol contributes to assaultive behavior and unfortunately it's a fact in the last thirty years since j c penny it would be extraordinary that the courts would not face this and again if they did five hundred and thirty three dollars i fear would be a dead letter it would simply have no impact because everyone would be drunk and again judge stan otto i think recognize this allowing voluntary intoxication to avoid an agreement upon exclusions for intentional harm would unduly disrupt settled contract expectations the decision to voluntarily intoxicate oneself with illegal drugs no less should not be abetted or rewarded by the comfort that one's in suing savagery will be paid for by the insurance company i think judg is that the california law is so overwhelmingly clear that wilfulness under five hundred and thirty three cannot be accepted by claiming that you didn't know what you were doing absent insanity and again california law is clear in all the cases like clamor and other cases in which the courts have ruled upon this idea of all college diminished capacity as an over arching claim the only diminished capacity exception that the court has ever allowed is insanity and the california courts have clearly stated that voluntary intoxication isn't insanity isn't a form of insanity it is clearly not something that you can climb and that's why i don't think certification is necessary on the other hand i'm confident that the california supreme court would recognize that intoxication would simply void five hundred and thirty three dollars and it would have no meaning and all of a sudden all of these ridiculously criminal you can just regard it in that the only basis for that allegation was that he was drunk and that's clear so i think the answer is i wouldn't disregard it i would simply recognize that everyone agrees he was struck in fact it stipulated facts in this case the judge not oh was that he was drunk on l s d interesting lee enough of course the report that mr frank submitted said that the l s d would actually have no impact given the circumstances in which he took it and that it was the intoxication that would have that impact i don't think that particularly relevant since both psychoactive substances and alcohol are treated by california at in the same way as i've quoted from the jury instructions so it doesn't matter what he plead to in that regard in the criminal case that's interesting he could have pleaded not guilty by reason of insanity or some other form he just pleaded guilty he pleaded guilty to assault he completely pleaded guilty to false imprisonment and it's important to note that those pleas included assaultive behavior to several other people so it wasn't just that he assaulted the victim in this case muskogee but he assaulted and falsely imprisoned another woman who was attempting to come to the aid of muskogee this was considerable assault part of the record your honor we included the entire hearing and he admitted to the court that the court read him the charges read him what he was being found guilty of and he admitted the guilt he at that time was competent competent by the court absolutely he was and in fact he made the statement that he made the statement at that time in open court and there is not one shred of evidence that he ever claimed that he was incompetent immediately prior to the bay to breakers on immediately after when he woke up and talked to the police in fact the police interview is in the record as well and he was very candid with the police about his use of l s d and his use of alcohol and there was no evidence that he wasn't extremely well versed at the time he was a college student not having any apparent problems before or after you on that last point with his criminal plea even state farm acknowledges in the briefing that's not conclusive evidence of intent the case law is clear it can be considered as not conclusive how like the just because it didn't and in a criminal proceeding doesn't mean we disregarded her bracelet if he made certain statements at that time said i was clear isabel then that's certainly had would be something that we could consider absolutely considerate it's the case law says it's not conclusive you have to look at the other evidence as well what case you cite that you can't rely on that alone that you can rely on that alone to put a person goes under oath testifies in criminal cases to what he did you can't rely on let alone they cannot be the only basis of denying coverage under california we address this actually in our reply brief and i get the cases it's in our reply brief it's not conclusive evidence and the reason is not conclusive is because people plead no contest and guilty for a variety of reasons they don't want it to completely eliminate and i've taken quite a few counties while i was just a court judge and i took those please after putting the person under oath and making sure that wasn't the case so it seems to me you're minimizing that part of the case is a case law from california saying that you can minimize it that way there's the case law and it's in our reply says it can't be conclusive evidence it's not collateral stoppel of fact on on their intent it certainly can something that can be construed as evidence absolutely and i'm not suggesting it's not evidence it's not conclusive though so you rebut was he was lying and that no my  have to look at the his plea and then you have to look at all these other facts that we have where he is not only does he say he blacked out and as i have memory but the police officers at that day on the day say he was under the influence of narcotics and he's he's not acting precise and deliberate he's acting like a wild man out of control he's eating grass he's throwing dirt he's running a ranch stand but if i don't understand why convicted if he didn't have the intent to commit the crime well he pled guilty to three general intent crimes and that's important the exclusion here is the specific intent to of the policy and this is under the umbrella and it it says it does provide for defense coverage of when you're when you have a personal injury false imprisonment claim alleged against you and as judge denied o recognize he recognized on page four of his order insurance code five hundred and thirty three does not apply to a breach of the duty to defend and so i would submit this panel could find a breach of the duty to defend because we have all these unanswered questions there's a potential for coverage here and if there's a potential for coverage that means state farm should have at least defended him in the underlying action while the while the case played out just like the insurer did in jacobs just like the insurer did in j c penney just like the insurer did in horse man just like the insured and  this law isn't clearly established you have a duty to defend in the st case that brings it i would say jake ups and i don't jacobs is probably the closest because in jake ups they defended and then they brought this issue with  insanity in the coverage action so there probably was this this unclear issue under california law whether volitional insanity and there they did defense that we don't know whether there we don't have an answer on the do to defend really correct i think you just can infer from the fact that they defended that they felt well if there's a potential for coverage here we have a duty to defend this guy even though he shot shot and seriously hurt