is an insurance coverage case dealing with the pollution exclusion and the language of the pollution exclusion in this case is the exact same language that was at issue in the two thousand and four to two thousand and six policies that were issue in the do cases in those doe run cases this court decided that that exact same language was not ambiguous as to the underlying allegations in those complaints the same is true in this case united players appeal is based on three points number one the policy excludes coverage for the underlying claims against titan number two as this court decided in the don't run cases the hotter or oil case which titan and the district court relied is not controlling precedent number three the policy unambiguous only allows united fire to seek reimbursement of defense costs in this case as to point one the pollution exclusion in this case is unambiguous and it excludes claims for bali entries that are caused by exposure to a pollutant pollutant is defined in this policy just like it was in the doe run cases as an irritant or contaminants and that includes fumes which are an issue in this case well i guess the issue of this seems to be this difficult about this case or is that when you use a product that's commonly used within your business should it necessarily be expected that all coverage for use of that product would be good and i'm thinking of a cleaning business irritated sort be an irritant so if you'd if you spilt the bucket of soapy water on the floor and somebody slipped and fell under your theory that pollution exclusion would exclude coverage right i don't believe that that's correct no was what this court dealt with a similar argument i believe in the doe run cases what the the exclusion you're correct says irritant and in other jurisdictions like illinois where they treated the exclusion as only applying to traditional environmental pollution that's one of the arguments that is made in this case first of all just to to also explain that not all their products are irritants as a matter of fact after this incident happened they went to a water based sealant so that they could get away from that problem so they did have a choice between concrete sealants that would cause this problem and those that wouldn't but in this case and i think that this goes to point to about hockey oil because what the what that the district court said about hocker oil is that what i believe you're saying here is the point that you're making here is that a company that uses a product like this should reasonably be able to expect that any claims related to that are covered what this court focused on in the don't run cases was it said that hawker oil did for one thing hopper oil was limited because it was dealing with gasoline but what hawker oil did was it focused on that on gasoline as a product and not as on its toxic effect after it was accidentally released and that's the same thing the district court did hear it said is there the floor steel that was used was their product and it focused on that but what this court said in the don't run said that you can't stop there yes it's a product when it was applied to the floor but when those fumes escaped and injured the three women in another area then it became a pollutant there so yes it was a product there like all the other products that might be a product but once it escaped into the environment it went in entered those people then it became a pollutant t a is a product unlike soap in a soap pocket bucket t a is a product that has product data sheets and material safety data sheets that clearly said the outline the health hazards that clearly spread on a supermarket aisle and pull bottle why so off the shelf you'll see a product warning don't get it your eyes open irritate your eyes so w floor and somebody falls under your theory it's not covered well i if they sleep on this floor in the soap on the floor i don't think that they're being they're not injured by the release of a pollutant into the right i don't think that that would fit that definition of suffering a bodily injury from being exposed to soapy water in the sense that it would irritate as doesn't this case it irritates the eyes nose throat and skin and tighten knew that they were they testified that they were familiar with the with the material safety data sheets in the product sheets they knew that in this case they were dealing with they knew that they had to use a mask and they admitted that ventilation for this product was very important so in looking at the facts of this case could they reasonably expect that a product and i think they have to read the policy as a whole what's what do you reasonably or i guess now you're into a case or you work at the policy and say there's a  covers irritants and therefore what do you reasonably expect to happen what is the policy or supposed to think about what  essence it was not used properly because they did not my understanding is they did not take the correct ventilation procedures to make sure that those fumes didn't escape back into the rest of the office building but yes if they read this policy which they're required to do and it excludes bolli injuries caused by exposure to a product that irritates the skin eyes nose and throat then yes they could reasonably expect that that those claims to be ex cases i believe those two paces spell out very specifically that the reason will a policy coverage is determined by comparing the allegations of the complaint with the policy language and in this case about that what we're arguing is that comparing the policy to the allegation should determine coverage the district court held that coverage is determined not by that analysis but by looking at the reasona expectations of the policyholder we rely on doe run for the premise or the the upholding of missouri law which is that the analysis is comparing the allegations to the policy expectation has to be based on reading the policy as a whole we'd all like to read the coverage parts and ignore the exclusions but you have to read the policy as a whole in your missouri law review cover to that's yes yes  i think that another point in the dover in case that perhaps goes to your cure question is that what was pointed out in no one one is that because a product is a valuable product whether it's so or whatever the product oil is a focus was a focus on the the item as a product as opposed to its toxic characteristics and that's what the district court did in this case it focused on whether teoh was a product which was when it was applied in the warehouse floor rather than focusing on the toxic characteristics when it was released into the area where those three women were  the writer of the law you don't get reimbursed for what a geisha expenses says it's in illinois right what does that mean what the the indorsement that you referring to what does it mean w i will admit that this there's a limit to record on this because we didn't deal with this with regard to that indorsement but what i will tell you there's an affidavit from our underwriter there that addresses that somewhat but and what i understand is that underwriting works like sorta like working with mr potato head they start with the potato which is all the coverage part and then they look at the risks and the different coverage parts come in so for example the missouri changes the illinois changes those various endorsements come in based on the risk underwriters are looking at who's coverage law applies they're looking at where the risk is in this case there was risk in missouri and there was risk in illinois and what happens is that when those risks come up that triggers the addition of these particular forms but in that endorsement there's no mention i mean it says illinois changes at the top but then it says this indorsement changes or modifies these coverage parts and those are the general liability and the umbrella liability which are the coverage parts that are being relied on here and what that says very clearly is that the underlying case is being litigated in madison county illinois under illinois law the coverage case was decided under missouri law because titan is actually a missouri corporation that does business in illinois remember that particular provision there's nothing i'm clear about the law to be applied in this case the longstanding rule under missouri law is that the language of a policy is tested for ambiguity with reference to the reasonable understanding of the insured who bought and paid for the policy and in fact that rule of law is stated in some formulation in the majority of the cases on which united fire relies for the proposition that the exclusion isn't forced literally when you look at environmental pollution it's lead tailings lead concentrate that's been released into the environment so this is a different case i'm confused about something and i don't mean there is as i all kinds of allegations that it's an illinois corporation that's right and your honor i think really the choice of law is irrelevant the most recent pronouncement by the missouri court of appeals on the pollution exclusion actually cites to columns which is the illinois supreme court case that was relied on in the underlying briefing and the rules of construction on contracts are to the same essentially and both missouri and illinois so so regardless i don't think that it makes much of a difference under illinois law it's very clear that the pollution exclusion only applies to traditional  concentrate and those verbs relate to intentional conduct if i discard something i've thrown it away on purpose if i've abandoned it the original loss of it may not have been intentional but i've made a conscious decision not to attempt to reclaim that so will  lay in short who bought and purchased that policy would not think of a discarded material as its product but in united fire be tightening this case tighten was using this product on a regular basis traditional environmental pollution in the terms that the courts have talked about it would be things like oil spills so when i say it's not traditional environmental pollution that's what i mean as far as why that wouldn't constitute an irritant under the policy it comes back to the standard under missouri law which is that the language of the policy has to be assessed for ambiguity in terms of the i understand it's really my question why is it you can't say because my client interpreted it to be some particular way therefor papers and if you miss that or your attendance why isn't it why isn't ambiguous because virtually no substance would not qualify as either an irritant or contaminant under some circumstance from wind down to dead skin cells it could be an irritant or a contaminant there has to some limitation placed on the language of the exclusion and missouri hasn't chosen to restrict it so much that it only applies it to traditional environmental pollution but it hasn't also allowed an unfettered application of that language what it's done is it's chosen a middle ground like the district court said a commonsense approach to this exclusion and what it's done is it's applied at the lay insured understanding reasonable understanding of that policy language and proper oil wasn't so much concerned with the fact that this was a product oil was concerned with the fact that gasoline in that case was so common in the environment reinforces another court of appeals decision that's true your honor but in addition don't run itself again occurred in a very different context first there was the issue of intent so because they discarded or abandoned it and that was intentional at that point that insured would not have viewed that any longer as its product whereas this case it was not intentionally abandon the product was being used as it was meant to be used in the ordinary course of the insurance business and it still considered it its product at that point although arguably the the improperly vented fumes would not  'm the the fact is that it has to come back to what the insured considered about the product it was properly using and it was properly using the seal and in this case the testimony below actually is that the improper venting may have occurred after titan left the premises tighten applied the floor seal and there is no record on the ventilation that occurred at that time there was apparently a garage door that was closed after they left the premises so whether or not there was proper ventilation isn't really before the court we don't know at the time that the ceiling was being applied what is clear is that titan couldn't have considered anything other than its product not near a tent not a contaminant it had used it regularly without any issue under those circumstances it's just like me washing a window with windex i know it has irritating chemicals in it but to me it's just a cleaning product well  way or another toxic substances of the general public so that would is that is that what you're saying is comparable to what happened in this case well in don't run to your honor at the court labeled it a classic claim for damages caused by environmental pollution too and i think that's the key distinction between don't run and this case is that no run we've got traditional environmental pollution which no reasonable assured could consider as anything other than a pollutant don't run was not addressing the irritant or contaminants language in the pollution exclusion so in order to understand how missouri courts apply it we need to look to case law that does hocker oil is one such case but there contaminant when viewed in isolation are virtually boundless for there is virtually no substance or chemical in existence that would not irritate or damage some person or property without some limiting principle the pollution exclusion clause would extend far beyond its intend vincent to herring or in two thousand and four and that stand and why it again of course and that standard is that we have to assess this language for ambiguity in terms of what the reasonable insured would have understood that language to mean and in them to think that it's not i think it's akin textual analysis and not all cases where something is regularly used means it's not a pollutant that's why you get cases such as german st vincent which anybody know that that you know it's material data safety sheet says it's dangerous that sort of thing would it be reasonable under those circumstances for the insured to think you know this is a pollutant xylene is a small portion of the product as a whole so i think we do have to look  the product for one but for another and more pointed because titan used it regularly without incident it no longer considered it an irritant contaminant didn't know it had irritating properties yes but virtually virtually everything does but when used in a proper manner that that never became an issue for titan in the past so it was reasonable for it to believe this is not an irritant or contaminant as the language in the xylene is classified as a fruit under the clean air act and it is and just because something is not federally defined as a pollutant doesn't preclude it from being covered by the exclusion the converse is true too just because something is defined as an irritant for contaminant doesn't mean it necessarily falls within that and exclusion because once again a host of products have product safety sheets or material safety data sheet and if  that were the standard than these claims would really explode missouri's attempted to cavite by applying the reasonable understanding of the insurer at that's the standard in missouri it's a standard that has caused a variety of results some cases where it looks very much like traditional exclusion the insurance understanding renders it not pollution and other cases in the supreme court given us any help they have not on this issue if the intermediate appellate court decisions are really what this court has to work with in this case in addition to that we don't run but because doe run is distinguishable i think the best cases are those intermediate appellate court cases and they've consistently applied the standard it's cited in the vast majority of them and i think it's the standard that should be applied here and we would ask the court to affirm the district court on that basis you i would just answer that question i did check the missouri supreme court denied it transfer on the white case and would also just like to point out that the white case relies on cases out of north carolina indiana sixth circuit and so forth for its