this is an insurance coverage case in which barry seeks coverage for a seven point two million dollar judgment i did against it that the jury in an underlining case found was caused by the failure of a barry product we're asking for reversal of summary judgment favor of illinois national insurance company because as discussed in the briefs the district court's order confused the definition of property damage with the scope of coverage which are two different things under a commercial general liability policy and because the interpretation given by the district court conflicts with the plan an ordinary meaning of because of property damage which is the key language at issue and conflicts with indiana law and the majority of courts that have decided this issue the majority of court you have to honor and sensually asking us to say that the indiana supreme court would reject is the wausau underwriters case versus united plastics in which the court stated that as in tort law so in liability insurance law once there is damage to property the victim can recover the nonprofit he including  resulting from that damage and that's the majority rule in wausau side a very often tender was in one thousand nine hundred two case based on illinois law and respectfully i don't think it survived either under illinois law or under this court's wausau opinion or its more recent h t smith opinion in illinois the rule of law now is driven by the l a q q smart case which was decided in two thousand and eleven in which the illinois court held that once covered property damage exists all consequential damages are covered and the concern here is that the court in h t smith just last term well in two thousand and sixteen noted that the difference in the language between coverage for property damage and coverage because of property damage that we have here is significant that because of is much broader than four and the court gave an example in fact in that case where a plane if that  became paralyzed that was sued for that sued for only the cost of making his home wheelchair accessible the court said if we had a case where or a policy that said we only had coverage for property damage those damages would not be covered but because we have coverage for damages because of property damages those are covered and respectfully are i don't think it it expands anything in this sense number one the key issue on on these commercial general liability policies is whether there's a pall of property damage triggering the coverage so that's one limitation once there's property damage triggering the coverage the courts including this court have held that all damages because of or resulting from or caused by that property damage are covered and that appropriate let lee limits or or makes concurrent the liability that the policy holder suffers and potential and the coverage for that liability that the policy holder has it's attention a very broad and in fact the article yesterday in that there is no indiana that's correct here but indiana law says number one you follow the plain ordinary language of the policy and here because of can have no one there meaning as a plain in ordinary sense then cos its root is cause its origin is the middle english by cos but what happened here lies the district court ruled that it doesn't need cars after that because some flying wage would be limited to  damages directly flowing from the property damage damage itself and you're saying that because of extends to incidental damages such as loss profits on future anticipated sales that is some broad view because i don't think it is our number one i think both statements you made are correct resulting from flowing far cost by those are all covered what the mistake that was made here was based on a single california case not based on ten depended did not apply this definition based on a single california case national union fire case he that the case the california c s the court the courts the court's ruling in this case is derived really solely from the ready packed california case and it's the only case in the country this is followed ready pack for that basis and if you actually track california law the rule in california is what i said it is everywhere else including in this jurisdiction and that is that if the precipitating events that triggered the coverage is property damage then all damages resulting from that precipitated that are covered there are limitations on recovery here your honor there are substantial limitations for example on the liability in the underlying case we argued in the underlying case that the damages were speculated that the plaintiff packin should not be entitled to recover these damages that their expert's opinion was speculative the economic loss doctrine precluded the damages we lost on all of those and the issue here is if you have the triggering coverage are the damages that the jury finds that were caused by that precipitating event covered or are they not and if the ruling is that they're not or only a certain number of them we're going to have a brand new branch of litigation in every case between insurance companies and policyholders as we have litigation in the underlying case on the issue of causation and then we move forward to litigation in the coverage case on the issue of what damages the jury found were caused by our a measure up so we're substantially limiting the coverage under the ruling here by the district court and i think what the district court became again confused by was this difference between and in fact at the time of the events barry had to policies in place one by federal insurance company a million dollar primary covers that provided damage for property damage and the second one we hear about today a commercial  policy written by illinois national that provided broader and broader come overage for damages because of property damage federal defended the entire case and paid its million dollars in coverage even despite arguable i  suppose having a different narrower scope of coverage here we have the broader scope of coverage issue and again the issue is significant not only because it denies barry six point five million dollars of a seven point two million dollars judgment that jury in that case based on proximate causes specifically found were caused by the property damage issue but also because it separates liability coverage from underlying liability which would be a substantial limitation on commercial generalized billing insurance coverage and cut against not only the plan or a meaning of because of his being broad and causal but also the majority of courts including this one that have decided the issue and on that i want to briefly touch on this stoppel because the two women the two armor are consistent as they should be and if have courts have held they should be such that the liability insurance coverage for damages caused by property damage is consistent with the causal determinations that are made in the underlying litigation there is no question that the jury in the underlying case ruled that the damages that they awarded against barry were caused by the event  issue you see some reference to a pure economic injury case this is not and no one contends it is a pure economic injury case that most cases are in fact i think if you read ready pack closely it was a pure economic future case because what the motion for summary judgment that was being ruled on in that case was taco bell restaurants that had been lost patronage because  contamination at other restaurants they hadn't suffered any property damage so in that sense it was one of these pure economic injury cases no one disputes that we have property damage here and once you have property damage that triggers the coverage under a commercial generalized delivery policy and then that extends to all damages that are caused by that property damage we've had an entire trial this is a duty to inde and we've had an entire trial over what damages were caused by this event we've had a jury determination and we've even had a determination by the first circuit court of appeal so we know what damages were caused by and under indiana law i would say there is a ty directly on point in the frankenmuth case in the mets their case in the other cases we've cited in our brief that where the jury has decided the fact or issue at issue that is a stop all plugs and we think a stop applies or so not i'm i'm so sorry but i do have a problem with that argument and i'm not sure why you think the jury's decision as to what damages to a were pack not and that's not the basis for stopping our stoppel doesn't apply to the same legal question otherwise it would just be the same case repeating itself the stoppel applies to facts or issues that are decided below in several cases of tell which side them on our brief that facts and issues determining clued in causation in the underlying case apply in a subsequent coverage case the only well requisite being that the yes right now go ahead well i see i'm into my i see to go through an appellate process you go through the briefing and then you have the passage of time when you get ready to present an argument so you have a period of time for fresh air to sit back and review the pleadings and reacquaint yourself with issues that you know well and to look at them sometimes in different ways and it struck me that that well this didn't seem to be true at the lower court level that it is evolved true from barry's disposition here and i think it creates much of the confusion that from my perspective and with all respect to barry that it has is is illinois national is not arguing as barry supposes that the language because of is defined to mean a measure of damages that's not at all true illinois national even below explain that because of as a causal element to what illinois international has explained however is that once you have the precipitating damage that is let's call it property damage because that's tremaine here to the extent there are consequential damages awarded the focus on those consequential damages is whether those damages are a measure of physical damage to or loss of use of tangible property and this watch you into penda which we believe really is the once there is that one defect and the relationships then soured those two thousand products that incorporated the defective product were destroyed there was an element of damage derivative of that that was consequential from that destruction which was a lost profit that's the equivalent of the two hundred thousand dollar loss profit penda where notwithstanding it was characterized as loss profit the court correctly looked at it and said notwithstanding its title or label kept behind it and let's see what it represents and the core correctly observed impended that represented the damage for those books that contained the soil paper it's the same thing here while there is those i b c's that we damaged and destroyed because they incorporated a defective product well there is an element of consequential damages there that was compensated what barry would like us to do is springboard from penda and then leap into embracing anything residual no matter its relationship at all to the transactions just simply because they say because of is unlimited and in braces everything that flows that is not only contrary with the form of a commercial general i believe policy but it is also contrary candidly with every single case that's addressed this specific issue for example and we've discussed the ready packed case clearly there was property damage and bodily injury because there is an e coli problem and the court had no problem concluding that the predicate harms were present but in terms of the loss patronage claim which is the equivalent of a loss profit claim the court correctly observed that those damages aren't intended to compensate for the physical injury or loss of use of tangible property or for the bottomley injury the next case is the consolidated milk case that's a case where there were creamers that were poured into coffee it was determined that the cream itself was defective the court concluded that that triggered property damage and then there was a loss profit flame and the claimant and insured openly said i'm entitled to coverage for the lost profits because those lost profits are because of the damage and the court rejected that and said no that's on tethered the damage is so the product itself that is the coffee that contain the milk but the lost profits relative to patronage or however you want to characterize it is not itself a measure of physical injury to tangible property loss of use of property the next case essex chemical formula that was the case where there was a product used on floors that damaged the floors the court concluded that that triggered property damage but rejected the insureds demand for the lost profits that it claimed as a consequence of that because the court concluded that those lost profits did not themselves form a measure of the property damage st paul and sell also set forth in our brief damage tells because of petr concluded that those tiles represented property damage but did not embrace the insureds argument like barry argues here that then it should extend to consequential damages of lost profits because those lost profits did not themselves represent a measure again of either physical injury to tangible property or loss of use of property and so you know a relationship with you know what that would be of course if we were looking at the issue it for the very first time  believe your characterization i don't disagree with it in a general sense and and though that if that same question was what i think is implicit and was made expletive in ready packed as well as consolidated milk in the other cases i discussed where the courts looked at it stepped back and contemplated what is the in nature of a commercial general liability policy and what is it intended to embrace that it's not intended to embrace as here which was intangible economic loss for products that never existed were never manufactured and which packed in sleep expert labeled relationship damages it's far too attenuated in so and so while while the question is is is practical i think that that that that the courts before you that have addressed the the exact issue that's presented here have done so and defined it to say to retain continuity with the form in nature of the policy and what it's intended to embrace those consequential damages must necessarily be either again a measure of the physical injury or the loss of use of tangible property and i think candidly well  implicit but in this court's case dealing with i believe it's h t smith which was the case dealing with the opioid academic epidemic in west virginia where and i believe counsel's firm actually represented the insured in that particular case where cincinnati insurance company took the position that the the the state's expenditures to remedy the bodily injury claims these unfortunate individuals did not represent bodily injury and didn't trigger the ensuring agreement and i think this court correctly said that that's not true because there's direct allegations of vitally injury and then and then the court went on to to acknowledge that this money is the state paid were intended to remedy that bodily injury that is they were for the care and excuse expression feeding of individuals who were in the health system and so that compensation was there to remedy that bodily injury it's the equivalent of the two hundred thousand dollars in penda where whatever you want to label it you can't just stop at the label you have to get  fines behind it and understand its form and nature so they're after go ahead and and and and take the position of whether by its form in nature it's intended to be compensation for either the bodily injury or as in here for property damage the other point of interest to you is counsel represents the  consistent with with everything that we've presented to the court because because while diminishing value was was the concept in that is typically a generic economic concept that diminish in effect representative of the spoliation evidence and the representative of the value of the claim again it becomes a measure of the damage and so it makes sense why the court in braces i don't have much time left and i do want to hit a couple of comments one is counsel mentioned that california law is evolved from ready packet with all respect that correct now counsels platform for jumping in that direction is the ai you case there was a case dealing with environmental contamination and that case is it's entirely consistent with the analysis and penned ready packing all the other cases that address this proposition because in that case the court said look there was property damage and then the consequence of that property damage was the cost to remediate whether we knowledge it doesn't change the analysis or outcome again what happens is is i think that that that barry and its attempts to to invite a breath of an insurance policy that simply just does not exist in the law will grab labels of claims without getting behind those labels and defining exactly what is it that those sums are intended to compensate now in terms of the is stoppel issue that was referenced i agree horridly i don't first of i think substantively we're right on the issue but but but entertaining you know for sake of discussion and breath incompleteness may deliver you to respond that we are somehow not the stoppel issue would not apply here because w the underlying case found the relationship damages to be a subject that ultimately very own that did not answer the question here which is what is the form in nature of those damages of the insurance policy itself and that's an entirely separate question and and the examples that barry gives to feed this theme of a stop will political because those cases are conduct these cases are cases where for example in the liability case there's a determination of negligence and then the insurer steps in and seeks to relive a gate the issue to try to transition it into an expected intended exclusion and so in those cases clearly the the fact of the form of the liability was adjudicated and this is not a conduct based issue again this becomes what is the meaning of and breath of the policy relative to consequential damages and again i would invite the court i think it has and certainly has a clear roadmap in front of it of the paces that are out there and there's multiple cases they all uniformly support illinois national's position and there is no case not withstanding various contention that all cases support its position there is no case that is direct through rectally addressed this issue squarely and wrestled with your honor's thought process that without this guidance you know is there an interesting question before us wrestled with that and decided that the only limitation on the coverage in the commercial generalize ability policy issue is we will pay your liability because of property damage that's either causal or it's not what i heard was trying to split the baby there and say well it is causal we can't deny that it's causal but then there's this other limitation that we're going to call a measure up that doesn't exist in the populace and respectfully every case supports berry and there's two things that you have to remember one is that in many of these cases including penda the court is guessing right the court's looking at a complaint trying to judge whether there is an allegation here that triggers the coverage the court is not going then on to say here's the scope of liability in fact intended the court said we have you have a duty to defend and the court said you have a duty to defend but they said we have to wait the outcome of the underlying litigation to determine the scope of your liability insurance company we are there in this case that's what makes this case you need from these other cases we know what damages the jury found were caused by the event and it's very important here to realize that there was only one product failure it happened on april eighth two thousand and eight it cost property damage and that was what was being litigated in the underlying case i think wausau is the leading case and let me explain why wausau the question was of these failed water heaters only fifty five or so sixty of them failed under this one insurers policy period and the court remanded for a trial on the amount of damages that were caused by those fifty five or sixty failures well why would the court remand for damages if the rule is what illinois national says and says you just do some math right you apply the cost of repairing these water heaters to the fifty five or sixty  or judgment the reason is and the court itself sent so was it may be that these initial failures of these fifty five or six caused the majority of the twenty five million dollars in damages awarded in that case the law primarily lost profits and goodwill the court said it might be that those few failures because they happened early when they happen caused this and we need to go have a trial on what damages resulted from these early failures that's exactly the point we're making here which is that once you have the property damage all them it is caused by that and there is no disputing that the jury applied a proximate cause analysis here and there's also no disputing that both an h d smith and an wausau and importantly in as we mentioned the james river case the court rejected a narrow interpretation in that case offered by the insurance company of arising from and said look one doesn't buy liability insurance just to protect oneself against being sued for inflicting foreseeable injuries one buys protection against any claim arising from the potential liability causing activity in which one engages and in that case the court held arising from was somewhere between but for an proximate cause this court doesn't have to decide whether it's but for proximate here today because the jury applied a more narrow proximate cause analysis i understand that there's a concern that these were large damages we were very upset ourselves with that but the point is they were all turman to be caused by the property damage issue and the test was whether it's remedial if that's what i heard today these were remedial there was nothing in here that was not remedial awarded by this jury so it should be covered even to the are good argument i heard today from illinois national so i think i'm in the past my time if you have any questions that's all right thank you so thank you very much in cases taken under advisement and the court will stand in recess for ten minutes