this is an insurance coverage case involving a determination of what is the insurers duty to defend the question is should the insurer really the issue is should the insurer westminster be able to avoid the broad duty to defend its insured based on a technical definition of policy terms your malicious prosecution is a term used by westminster but not  defined in their policy or as a matter of law as the insurer obligated to provide a defense because one the policy term malicious prosecution is ambiguous keeping what seems to be the theme of the day and secondly because the facts played in the underlying complaint continue to stay a state it could potentially covered claim under any definition of malicious prosecution defense are you familiar with the stabilization what argument was made by your clients at the preliminary objection stays phase you know i don't know the details i should but i don't think i believe the argument is generally they moved to this they moved the file preliminary objections as to both counts of the complain to st count them the wrongful use of civil proceedings under the dragon any act was granted sustained and the nd count was denied the committer objection was denied and the case went forward on the nd count finished yeah i guess what i'm getting at is i would assume the argument was made that recovery was not possible for on the malicious prosecution claim that would be the purpose of the pr whether the insurance company for the abuse of process count still had to provide coverage under pennsylvania law should we refer certify that to the pennsylvania supreme not implicated by the actions of defense of counsel in handling the preliminary objections i believe that is correct answer is no they were not retained by the insurance company bichon and you know if there was anything in the record about a discussion of the insurer proceeding for pursuant to a toll brothers case it's given a lot of emphasis in our brief i think it was interesting that in that case where there was an abuse of process claim and the policy term was malicious prosecution the insurance company did exactly that they defended under reservation of rights and when the judgment came in that the issue in that case they had defended the issue in that case was a duty to  the district court heard on that issue there is a continuing duty to defend that there are no pennsylvania cases that have decided that issue but i believe you can extrapolate from the basic pennsylvania law the standard for a continuing duty to defend in any event the the determination of a duty to defend applying pennsylvania law principles requires an independent analysis by the truck by the district court to determine if there is any possibility of coverage the just request did not make an independent analysis the district court relied entirely on the on and on the decision on preliminary objections which was issued without opinion the decision and had no opinion it what we do know is that your client is not liable for malicious prosecution no we don't know why you're so i may be liable for peace process but lucius prosecution was taken out of the case right well  wrongful use a civil proceedings under the dragon any act was dismissed that's not the term used by westminster after all the years of court saying that term is ambiguous westminster continue to use the term malicious prosecution i understand the courts use those interchangeably sometimes but but the point is the facts pled it and none of the facts were stricken that test in pennsylvania for determining coverage is you compare the policy term to the facts pled not the labels put on the case by the defendant we don't know exactly what the just but the trial court the common pleas court held but we do know that the court did not strike any factual allegation  factual allegations there are fifty factual allegations before count one count one then says in paragraph fifty one as we often see in pennsylvania pleading plain if you're by corporat and let's say that the defendant has coverage for tort for torts but not contract is it your position that if on preliminary objections the court throws out the tort count and says under the gist of the action doctrine plaintiff can only recover under contract what i hear you saying about the allegations is that because in my hypothetical the court does not strike the factual allegations that insurance carrier would still have to defend the torque claim even though the tort claim has been thrown out of the case is your position closed my position is the the court has to coverage if this if what you're describing is a simple breach of contract with someone didn't pay for goods sold and an account in allegations were thrown in of negligence as often happens  the court strikes the negligence on just to the action the court can make and the district court can make an analysis of that and say what's this case about what's what are the facts pled exactly how close how closely intertwined is the negligence claim with the contract claim if it were simple good sold and delivered not paid for then i think the negligence claim is gone mistress and over the court makes a determination there's no likelihood of there's no possibility of a future you cases it's there's no decisions at least our research didn't disclose any right if you're asking us to follow what hawaii has done basically it's close i'm asking you to not adopt a bright line test and the restatement and i arguably hawaii in the cases that have followed it take a bright line test the the other way yes in my favor but i don't think we have to go that far in this case where you've got minnesota and saying minnesota yes i know of no case in pennsylvania holding that anything about the could insurance company's continuing duty to defend when the covered claim is out now the cases that hold the can duty to defend no matter what artemis example of the negligence can't claim being tossed out when it's clearly a contract claim the i would think the hawaii court would say yes you have a continuing duty to defend right through to to final judgment dismissal of the case settlement or the appeal i'm not asking for that i'm asking for that on the facts of this case i'm asking for a rule a standard that in every case the judge can the duty to make an independent analysis and i think this is what the cases actually do the cases around the country and that they actually make that independent analysis  analyzing the facts that are still in the case how intertwined are the two claims how clears the law how likely given that these have use a process and bush you just if you follow pennsylvanians durance law which says the duty to defend is broader than the duty to indemnify and you have to look at the facts against the complaint and determine if the facts glenn create a possibility of coverage and you extend that into the post dismissal kiriat that's the analysis you have to make which is a case of the facts an extra could be intertwined is the law clear on this issue on the cases that have dismissed that that just says dismissal of a cover count is the end of the inquiry they talk about well in this case the court the per party was dismissed from the case in this case they not analyze the law in this case there would be a criminal a criminal action is described there be no possibility of coverage because of the criminal exclusion in another case it was a board member and the company who had the you know courage in the company was dismissed so the board member was no longer in the case but none of the cases stopped with well it was a dismissal bright line test i don't have to make any further inquiry i'm done out of the case it's so close in this case there's so many reasons i mean th ambiguity i would say this is a strong likelihood there's a likelihood or put put put another way the court can clearly rule out the possibility that the the  claim will come back or maybe more important that the facts pled in count two the abuse of process count if proven in a trial may permit depending on the judge's charge which we don't know what it will be it'll be a different judge depending on the jury's verdict the jury could come back with a verdict which clearly which makes findings on those facts which are in the case and if they do those facts make out a malicious part prosecution claim however it's defined which ministers chosen never to change its policy from militias prosecution to pennsylvania endorsement that might say we don't cover we cover bush's prosecution as set forth in the dragon any act approach because i understood that what you were going to be questioning is the notion that pennsylvania ought to get on board with the notion that until the well that process has been bright line principle and i think the district judge made a mistake in having a simple or simplistic bright line principle that said like a migratory fo flocking in with no borders no limits no boundaries it's a it's a as i say what i see in the cases that i've read from around the country and in the district court is an analysis made by the district court those circumstances if those if they had if a court had thrown out a negligence claim that was a colorable claim just because it was labeled negligence you know pennsylvania law is clear you don't look at layer has this court has repeatedly held you don't look the court should make an in the district court on the congress's huge make an independent analysis and say is that negligence claim still pled still real in this case and if not is there a reasonable chance that it will come back either a trial post trial motions or maybe an appeal the not saying that in every case you have to wait for the appeal to be resolved but in this case you need something more to make it clear that there's no possibility of coverage and i think a long answer policy that insures against liability for malicious prosecution does not cover abuse of process is a separate and distinct tort under pennsylvania law much of the briefing in the case concerned the impact of this court's two thousand and two higgins decision which we've not really discussed during this oral argument but a state law it's predicated on the sources of state law that are available to it at the time of this of the decision and the vitality of that decision in the future depends on how state law has a law on the question so ten years after langman panel was correct as well i want to bring to the panel's attention however a recent decision from last month from the pennsylvania supreme court which makes it even clearer that abuse of process and basis in fact or in law as distinct from abuse of process and the holding in that case was that it was limited to proceedings not intricate filings such as motions p objections subpoenas discovery those are not proceedings abuse of process by contrast involves any type of legal process that is perverted that is not used for the purpose that it is intended and it is not one in the same with proceedings and abuse a process can involve abuse of discovery abuse of sanctions motions post trial motions so clearly when we see the rain or case we can understand that abuse of process and malicious prosecution are entirely different the heart of the controversy st is whether malicious prosecution can encompass the term busa process and it does not why well st of all the libel of the elements of the two torts are entirely distinct personal injury coverage extends to enumerated offenses specific torts libel slander false imprisonment breach of trade dress copyright infringement malicious prosecution it does not include abuse of process and by shoehorning abuse of process into that list would ignore that it's not identified it is and it's not it can to malicious prosecution and because the courts have held that these are distinct towards the lower court was correct in treating it as such  but let me ask you then the fact the fact that count one was dismissed without an opinion that we don't know whether it made you come back into the case again should first that is controlled d by the over dorf decision of this court and the elements of that or one or it would have to conclude that it is unable to predict pennsylvania law on the issue of course this court frequently does predict pennsylvania law when there has not been public importance to require to suggest that in the certified to the supreme court it also then involves delay and that's another one of the factors i think that goes into this analysis because then we are we're essentially addressing that issue before the supreme court this case the underlying case is going to go to trial in march i believe we're able that's a factor as well but i would also suggest that this court can discern from pennsylvania law and this court's decisions the decision principally crucial union the answer to the question without certifying the matter to the pennsylvania supreme court because we know that in that time there would have been a duty to defend because there was a live claim for malicious prosecution yes all right so so you would have then defended the case and then  presumably you would have made the same arguments that were made on pretty hose and when you prevailed on your piano on malicious prosecution then what happens well i mean the same issue would be presented once the malicious prosecution fell out on a demur that the duty to defend terminated the only difference in this case is that it never actually was triggered because at the time of the tender it was no longer the case right but my but my point is that i guess you  question that that when you win on pianos a malicious prosecution strode out of the case you call of the insured and you say hey can you know congratulations the good news is we won the bad news is we only one half the case and unfortunately for controlled the fed that's why it's a hypothetical it is a hypothetical but yes it is true that that if the cover count did not withstand scrutiny there is no obligation on the insurer to simply put blinders on to that fact and if it was controlling the defense not seek the dismissal of the overkill if you know pennsylvania converse is true too if if they if they prevail to pos on abuses process and failed on malicious prosecution then coverage continues right now question about it right the cover count remains because the concept is that if there is a potential that the case would result in a verdict and judgement within the policy coverage for indemnity that the duty to defend remains and the language of  essentially the language that finds its way in all the decisions is that the insurer must defend the claim if it was potentially covered until such time that he can find the claim to one not covered by the policy so the question is so so not only just this case it's sort of keeps coming back to the question of whether these are two separate causes of action under pennsylvania law or whether they're i think mr chen and use the phrase inextricably reality is that the visa process count and if there was a verdict a trial in favor of the plaintiff it's still based on a visa process the facts we can talk about the facts for abuse of process it's the perversion of legal process it doesn't matter whether the suit had factual or legal basis it's it's using it essentially to extort or it's misusing the legal process and those facts on which liability could be based at trial aren't covered because they're there just abuse a process so you know it's only if the if if the case is posited so that liability can be based on a list prosecution which as a matter of fact it cannot be because it's not part of the case you know the do to defend remains but there was a demur i mean the court ruled as a matter of law that the facts play could not possibly give rise to this recovery and that's a high standard and if and then what happens when and if if at the end of the day all of that is reversed what happened is that is that the way to do business i mean is it strikes me as kind of a well other way well at the time if it's reversed entire case and so the converse of that is an insurance company is defending a case for which it has no obligation to indemnify and you know i think yet at least riko union commercial union talks about that because it's states you know that a recovery that is not accomplished by the policy it is true the pennsylvania supreme court has not specifically addressed the issue it is an analysis of of the fact that there is no duty to defend if there is no potential duty of indemnity in this instance there when this case goes to verdict there is no potential duty and so you are not you are not lying on the district court embracing the superior court case in bomber is that right well i don't know the bomber actually said it does in fact it does not say you have a number here i don't it was a misuse of bomb i didn't understand that reference to that but in fact all of the district court cases that are cited in this instance all go off on bombs are well i' of confining a claim to recovery not covered let's talk about that because what can it possibly mean other than the dismissal of a covered claim it doesn't truly mean defending a case through judgement well at the time of judgement there is nothing left to defend final sounding language that if they do if then goes into the case is absolutely clear that there is no longer a possibility that the insurer owes you don't know what the language was that the court employed but it had nothing to do with what was before the rd circuit remar ok so the the but what i'm trying to get to is the whole white case really the concept of the white case is oh it's in a lot of tory you know it could always be you know the judge has the discretion to vacate change its mind that's that that's the theory of of it it makes no sense because jury and it's changed and then it's reinstated well then the carrier will defend but otherwise you're defending a case that you don't cover through judgment and then what do we what do we understand confining the claims that one not covered you have defended to look until the file is closed and everyone just throws the file in the garbage that's not what that language can possibly mean the net it seems  that seems like an especially pernicious ruling multiple count cases because if if some of the counts are clearly not covered and one of the counts is arguably conquered then the insurance carrier law firm has every incentive to make sure that it defends only the arguably covered county john roll over and play dead on the other uncovered concept sounds pretty crazy i mean that no i mean if if the once the firms hired prejudice the interests of the insured but we're not you know we're not dealing with that or we're dealing with a uncovered cow and you know the question of whether a carrier is going to control the defense or claim that they have no potential no and we submit that what happened here we understand your argument thank you very much mr she was mr chairman you reserve two minutes for a bottle i'll try to be fast there's a lot to cover the that up entire argument is what's wrong with the district court's decision and westminster argument we have never argued that only the case has to be maintained through defenses always through judgment we've never argued there's an abstract principle that all cases have to be defended forever once is it a really a covered claim in the case so i quickly read paragraph one hundred and sixty five which is right in count two and in this is sprinkled these allegations are sprinkled throughout the case the the remaining countdown to defendant's actions and superior statements demonstrated the frivolous claims which is defined in paragraph one of the complaint to include claims without brought without any merit among other things were procured initiated and continued for enter our area and then it goes on the expressed purpose in a wrongful purposes and then the next paragraph procuring initiating and continuing frivolous claims for improper purposes and by improper me so it combines the two claims if that claim is proven at trial there is liability for a malicious prosecution claim whether it's labeled dragonet a arm or the term westminster prefers and continues to use in spite of not numerous cases saying that term is ambiguous they continue to use it a reasonably intelligent insured has no idea that that term unless they go to a lawyer and a lawyer or even a lawyer would have to look it up to be sure that there's a clear distinction between malicious prosecution and abuse of process now we didn't talk about ambiguity and we don't have time for it now but the there is no case in all the cases again formalism formality overarching principles without any look at the reality and the clear and the law the  there aren't all the cases relied on for the distinction between malicious prosecution and abuse of process by westminster and by the trial court are not insurance cases they are cases which delineate the distinction between those two torts and i don't believe we've ever denied that there that under pennsylvania law there can't be a distinction between those two torts for general purposes such as the statute of limitations however that's not an insurance case the different issue under insurance law just like the district court didn't make an independent analysis of the continuing duty the district court didn't analyze from the state under pennsylvania law what the district court is supposed to analyze which is what  re the what's a reasonable interpretation of that language not the technical language of lawyers or jurists but what is the reasonable person understand likely to understand from a reasonably intelligent from the perspective of the reasonably intelligent person is there any ambiguity other two possible different interpretations of the language of the policy and as you know that would be interpreted against the ensure that the only case there is one case decided under pennsylvania law and it's a great case it's a thorough case it's beautifully written case it's a well researched case and that his toll brothers cited a number east and quoted lines in the various and toll brothers is delaware case it was entirely ignored the district court was not writing on a clean didn't have to write on a clean slate instead of the abstract principle that well there's distinctions between the two charts the looking at it for in the in the insurance coverage area you make a different inquiry and toll brothers makes that inquiry and it's a thorough careful i urge the court to read that case that case concludes yeah there's distinctions and they still are distinctions in pennsylvania l between the two torts but but there are blurred and they've been from the point of view of a reasonable insured not not a subjective interpretation  objective interpretation there is there is ambiguity in that tape term and it should be construed against the insured so again i  like the court it may i still have found although the distinction between the two towards is interesting in a scholarly historical context it doesn't seem to matter much to life in the real world when an abusive litigant and both of these see unlike the negligence and the contract claim being separate you have abusive litigation that's what both towards or about both torts or in the case the facts that i read about initiation continuation of a suit that's discovery and trial in this case the insur needed a defense on those claims and which mr had a potential obligation there was a potential for recovery on those claims but going on when an abusive litigant uses the legal system to oppress others there there are many cases in which both towards overlap and either will or will walk that's keaton prosser on towards the quoted in judge cohen's opinion which was adopted by the delaware supreme court deciding believe the holding of that case is enough is enough that case it gone on forever people are going back and forth now same firm that's involved in this case and now are the courts that enough is enough the court did not reach the issue of whether abuse of process is a person not insurance nd of all they didn't reach the issue that it was a collateral motion for contempt that was then tossed out and the person who got