right i'll call the next case of help first and others against capital specialty insurance corporation and others y name is ted craig i'm with from a gray robinson from florida with me is deputy general counsel for health first anthony conti it's a pleasure to be here may please the court the district court committed a fundamental error in entering summary judgment in this insurance coverage dispute because the court treated the claims asserted by health first as claims to assert a duty to defend rather any time moreover none of the policies even implicated contained a duty to defend yet the district court at the invitation of the insurers relied soley on the underlying pleading of the killings brought against health as the basis for his ruling what he said the court should have looked at it what in addition to that compliance do you think the court should have looked at all the court should have looked at all of the evidence relating to the nature of the claims including the timing the parties involved and what the claims were really about instead the court looks soley at the superficial allegations alleging as the court put it anticompetitive monopolist and he had the court look at what you wanted to look at what would that have revealed that would help your case well two points on that your honor first its opposition to the court committed fundamental error by expressly stating it would not consider an at whatever you ask him to look at first what did you ask him to look at second if he had looked at that what would the district court judge have found that would have helped your argument these claims weren't related question you health first argued that there should be a more fully developed record in that s was premature based soley on the allegations of the complaints and the court rejected the argument that summary judgment is premature and that more discovery should take place and stead expressly finding that the court didn't need to look at any evidence this is this is unequivocal in judge i'd like to quote from the court's order as to planets this is from page twenty one of the summary judgment order as to plan this argument that i would be improper for the court to rely upon the underlying complain and determining whether the claims are related the court disagrees courts do not require a showing of the actual facts to determine whether multiple claims are related the court continued furthermore plaintiff's argument that it would be improper to s misses the mark for you prompt just curious so it seems to me that even if you lash out the facts a little bit the court's going to be looking at the same time clearly these are subsequent transactions so we know the timing is not right clearly the different parties that's part of your argument so we know that's not right and i'm just not certain what it is in addition you were going to show that would make this not related but the facts would have been the only route for anything to the court so i just the proffer at the proffer we would make is that we would take depositions of the parties who made the claims and we would have our own people testify as to what the nature of the wrongdoing was we know did you provide the court with any affidavit and support as there was evidence supplied in opposition but the position of the underlying facts of these complaints yes i believe there were affidavits submitted with regard to some of the claims and also underlying documents and what our position our position on appeal is that the court did not even allow a consideration of that evidence i know that the insurers want to argue that health first failed to meet its burden to create a material issue of fact but this order fails under rule fifty six for the most basic reason that the court never even talked about whether there were disputed issues of material fact never made a finding that there were no disputed issues in fact that's nowhere in this order the court said i will not consider any extrinsic evidence other than the facial allegations of the please we believe that's fundamental error well but i mean their argument is you know you can complain about the the court not looking at evidence but you've got to give them some evidence to look at and you know just you say you believe there affidavits about the underlying facts of these complaints yes there was there was some record evidence supplied but the position and it's in the record i'm sorry we watch a big index over there but it's in the record that health first argued that it needed to develop the record more thoroughly before summary judgment could be entered and the court rejected that argument and said i don't need to look at any evidence i don't need to look at what actually these underlying claims are about i don't need to look at deposition testimony etc i can rely solely on the allegations of the underlying complaints and that was the crux of the district court's holding over the objection and one more point i'd like to make the insurers asserted an affirmative defense that the claims were not covered because of this related claims provision i would argue it was the insurers duty of production to demonstrate that factually the claims were related but they didn't do that either they argued to the district court that the court need only rely on the underlying allegations in those complaints so if we're going to argue about burdens of proof and whether we created a material issue of fact let's keep in mind that the insurers asserted in the form of defense pursuant to this related claims provision we would argue that if under some type of tipsy coachmen argument that's a florida term you were to try to preserve this summary judgment order by finding that there is record evidence they did meet their burden or they did not prove that the claims were in fact related to their argument was that the underlying complaints are the basis for the court's ruling that it's all i guess i'm a little bit o hell first point out to the district court cases like a gun then hey you know we're we're the law does seem to be that yes if it's for you know you're supposed to look at the underlying facts not just of the complaint if you're going bag of do to defend cases and duty to indemnify cases some of them were decided i would argue but the court didn't really draw a distinction between the two i'm not sure what the court's reasoning was in rejecting those but florida law is quite clear on this a duty to indemnify is determined by the underlying facts the actual facts relating to the claims i find it curious that the insurers would be arguing here that we should conflate these two tests i mean this seems to undermine what the insurance companies do is they defend under reservation of rights they get their second bite of the apple on the actual facts underlying the claims if the court were to accept the district court's reasoning we would do away with the duty to indemnify test in florida and coverage itself would be determined by the allegations of the underlying complaints i can't believe that's what the insurers want this court to do that if what the basic facts seem to be the same i don't know if details are different and all but all of these is  that your clients were engaged the allegations when they were sued in a scheme to leverage their monopoly to coerce physicians and help insurers and h m o s and exclusivity agreements parties different names different times but aren't those the names in the day no no no we would if there were a duty to defend an insurer would certainly want to be defended but we didn't seek a duty to defend nor did we enforce a duty to defend these are all indemnification claims for settlement payments and defense c so the way the system works in florida is a a lawsuit is filed and the allegations are colored with certain things that might fall within the coverage and insurers in florida have to defend what they get to reserve on and benefit cation as to whether they're ultimately responsible for lawsuits what they're arguing here is the reverse they're saying that if a complaint alleges anything that sounds similar to a prior complaint with regard to a related claims provision that there is no coverage and we know that's not how the system works the system works whereby there is a second look and if you look at some of the cases we cited for example the k v holmes case if we accept the idea that a type of behavior means it's a related claim then we're throwing the baby out with the bathwater because that would mean any negligent supervision claim over a twenty year pay period could be a related claim any claim for any type of unlawful employment practices over a twenty year period could be a related claim you have in that argument then are you are you conceding that all of these claims are the same that they rise and fall together are or are you arguing that  he would help us with that kind of information that's what we need to know if there's something different on the marriage well i believe we did so in our in our brief if we if we are going to look soley at the facial allegations of the complaint which i believe is an error and we're going to look at these complaints there are differences in them one related to a couple going bad with the ones that later winds what would you say is your strongest of the subsequent claims your strongest argument which of the subsequent that it's not related yes just to set the table remember one into the plan as were completely on affiliated with list off had nothing to do with wish to offer his hospitals and have been with their hospitals and in that case the allegations were that a group the health care intervention spine institute of florida and a number of individual medical providers were excluded from the health first insurance network and they had their hospital privileges revote and they did not receive referrals from physician groups affiliated with health first however if you look at the first worst off case it was about anticompetitive a legit any competitive conduct designed to compete with worst offs rockledge hospital that's what that case was about and the point if you can see the three will stop cases are related stuff one two and three yes well they're only related in that they had the same plaintiffs but the anti competitive behavior alleged was stuff three and four relates to a different hospital the hospital they  mean you and your summary judgment motion you said they were they raised essentially the same claims well they same types of claims but i would not i would not concede that they are in fact related as that term is used in the policy because the hospital at issue and if we did develop the record on this that's what we'd like to do but if we get reversed and go back down the hospital and the worst stuff three case was not even constructed it was not even in existence yet and that the crux of that case was that there was competition that would injure that new hospital let me ask you about this the way you characterize these these provisions on notice so there's six of these policies that we're talking about and five of the related claims provision uses the language quote weather related logically causally or in any other way and whenever you quote from these provisions in your brief you leave that clause out did you do that on purpose or are it seems about there's no guile in that your honor well i mean with this kind of important well i think what's important here is this is not a litigation exclusion provision and that's how the district court characterized it will i mean i think whether it's an exclusion or coverage no no i'm just talking about the nature of the clause if you look at for example the  allegations well i guess your honor you if if the court were to construe it to mean any prior allegations of wrongdoing in any prior complaint that language certainly isn't in that provision unlike a prior litigation exclusion where that expressly included in the of khowst a case which the chair as i said they lean on heavily it was a prior litigation exclusion you can see the difference and that type of language that is where there is any prior pleading or lawsuit brought that alleges anything between four different plaintiffs who are all suing for unlawful employment practices with regard to the same facility and the same managers and the court drew a distinction based on record evidence deposition testimony affidavits it ce with the fourth claim it because she was not working at the time of the original claimant when the first claim was made and she was not at the particular event where there was purported unlawful conduct mr craig even reserved minutes for your rebuttal and good morning good morning your honour's may please the court my name is kate stetson i represent the executive risk of pelleas and i'm going to be speaking for ten minutes mr constantine for five minutes mr craig's argument i think has fo fundamental problems one of them is controlling precedent one of them is the lack of evidence that you pointed out one of them is a significant forfeiture issue and the last is the provision itself so just to take it from the top the acosta case that we mentioned in our briefing a goes unmentioned in the opening brief half of the reply is spent on trying to distinguish when diminish it but the fact is it is an intermediate court case from the state of florida that is not only controlling on this court but that has been cited approvingly by this court already in the zucker case that we also cite the cost of the name party contended in that case that quote because the duty to indemnify not the duty to defend is at issue it was improper for the trial court to enter summary judgment without considering whether the evidence a cost a could provide could create a genuine issue of fact that's a joint head but that's at page five seventy four of the case five seventy six of the case whether extrinsic evidence should be considered to determine the application of the exclusions in that case it was as collusion in this case it's a covers provision mr craig pointed out is a matter to be decided on a case by case basis according to the general summary judgment standard whether resolution of the legal issue creates a genuine issue of material fact and that leads me to the second point you judge carnes i think asked mr craig three times if the court had looked at the outside evidence what would it have found judge martin you said did you proffer anything and mr craig's answer was the proffer we would make is essentially all of the evidence below they made no proffer they have made no statement in there for he said he thought there was an affidavit or there were some affidavits or something there there may well have been i think the issues that that health first confronts here is that they did not make a single argument in their brief about what those facts were that should have been looked at but were not and if he's here challenging a summary judgment against him it was his obligation not only below and by the way he made no fifty six motion for discovery for reasons i'll get to in a moment but he made no allegation here our contention here that there was a single fact outside of the complaints that the district court should have looked at but did not and that's difficult to understand if there were such facts because all of these court cases of course were available to health first health first was a defendant in all of them and was top four and high ins were settled before this case even began so it wasn't as if there was still factual issues developing during the course of the litigation that among other things is a significant difference between the k b home that health first deciding to win this case the party in k b homes that wanted the court to look at extra no evidence point to the court to extradite all evidence they pointed the court to deposition testimony in that case that showed that despite the individual claimants and the nature of their claims what the deposition testimony actually revealed was a system of harassment within the workplace that tied all those claims together that at the there was no discovery available to us that wasn't available to health first health first was the defendant below and it had settled these cases even before it filed this one so all of the facts that presumably it would have marshall in support of its contention that despite the obvious relatedness of these complaints the cases actually point related were well within health first control but i mean do you agree that under florida law on which is exactly the type in a cost of defense costs plus a settlement what the it cost to court says is we recognize that a court may look at the facts outside of the complaint when it comes to inde but what they cost a court says is the usual summary judgment standard still applies if the party against whom that related case claim is being made puts forward the allegations of the complainant says look how similar these are they are identical paragraphs across all these complaints health first itself as you noted contended that these complaints were identical then it is up the obligation of health first at that point on summary judgment to come forward and say here is our disputed issue of material fact and it proffered nothing there or in this court importantly but that brings me to the third point which is the significant forfeiture of the issue that health first has the district court didn't just look slowly to the allegations of the complaint that is a contention that health first makes a dozen times throughout its brief and here today the district court at page twenty seven looked at health first own statements and judge martin i think you mentioned some of them the statements that were made in among other things the summary judgment motions that were filed in the cases below and what the district court said as to those is that the conclusion that was taught three is related to one and two is supported not only by the court's review of the underlying complaints and independent analysis but also by the position previously taken by health first in litigation which the court found particularly in lightning if you look at pages seven through ten of our brief you will find in detail all of the statements that health first made describing the similarity of the cases and you heard it again head first counsel today that the complaints were copy and paste jobs so there was no suggestion by the district court that it was just relying on the on the complaints themselves so in many ways this question even if it weren't already resolved by a cost which is controlling the question is completely academic that leads me to the fourth point which is the provision itself the cases on which health first prefers to rely so for koplowitz contain a far narrower coverage provision related claims provision and here koplowitz was distinguished by another case that we cite in our brief executive risk as containing a narrow provision this provision is extremely broad and judge martin you pointed this out as one as well it contains among other things all of the broad language that this court encounters and a number of different circumstances based on a rising out of directly or indirectly resulting from in consequence of or in any way involving the same or related facts circumstances situations transactions or events or the same or related series of facts o circumstances situations transactions or events that is a broad related claims cause and i want to be very clear mr craig conceded this as well that is a coverage provision it is not an exclusion and because it is a coverage provision the burden was on the insurer read not the insurer to establish coverage the fact that we identified this is in a permanent defense is irrelevant because the insurer read has to show in a claims made policy that the claim that they are seeking coverage or identification a demonstration for was first made during the policy period that they say it was and because this was a related claim all the way back to was tough one and two it was not first made during the policies for which they subsequently sought coverage so if you stack all of those things together and you have the concessions of health first itself as to was tough three and four you have this broad coverage provision you have the district court's detailed analysis not just of the fact that these were anti trust cases but of the exam plea the circumstances the gave rise to the similarities that we go through in detail in our brief as does the capital specialty brief as well i would urge the court to look at the charts that are laid out in our brief look at the discussion in the capital specialty brief of the number of paragraphs  shared in common of all of these complaints and when you stack those up against the broad related claims for vision i think you should easily conclude that the district court's thorough decision was completely correct if there are no question not almost on all fours with the position of the executive risk defendants and we certainly join in all of their arguments and join in misc absence presentation today my my friend mr craig was not involved in the underlying case or in the summary judgment stage of the case he is new to the appeal and so there are a couple of facts that i do think need to be brought to the court's attention in connection with the questions that the court asked during my friend's presentation first of all there was no affidavit submitted on behalf of health first other than affidavits that simply hugh here are the cases that were filed there was no affidavit submitted that said this is what the cases really were about these are what the facts of the cases were there was no affidavit  evidence submitted in response to the summary judgment motion that addressed those issues on health first behalf and that is a critically important point because health first unlike my colleagues and me unlike the executive risk and allen defendants was in sole possession of every fact and every document in the underlying case and so it i believe a question was asked did help for us asked for fifty six f motion were asked for similar relief help first when it comes to the facts of the case didn't need any of that it had every every fact and every document it could possibly have preserved provide presented and there was a nine month period between the filing of this motion for summary judgment and the court's ruling on it in which the parties completed discovery in the case and at no time did health first ever seek to supplement its response to add that information second judge gilman asked did help first sight hagen and some of the other cases that they cite in the appellate group brief the answer is no squarely no my friend refers to the reply brief i had no recollection of that i looked at it while during the presentation there was no citation to hayden in the reply brief there was no citation to hagen in the opening brief and in any event this argument certainly wasn't it was made in the form of a paragraph now i would say with regard to hagen that in that case and the general principles that it cites are not applicable here and with respect there seems to be a misunderstanding of the nature of the duty to defend and duty to indemnify distinction the duty to defend analysis is based on the complaint if the complaints reflect that there is no coverage then there is no duty to defend or duty to indemnify so actually the duty to indemnify is determined by the complaints if the complaints indicate a lack of coverage now when the complaints themselves are not clear the courts have said that you can then consider in determining the duty to indemnify but not the duty to deprive the insurance companies often the brute duty to defend his broader and our insurance company if the complaint alleges things that they may be cover you've got a duty to defend you could later decide there is no coverage because when you get into the facts they don't match up with the complaint and therefore you can deny coverage right even though you've entered you started to duty to defend your  judge gillman you've hit the nail right on the head it in a way it doesn't make sense to come plain that the court applied a duty to indemnify standard when you're the insured because the duty to indemnify standard is something the idea that you can standard of bringing in extremes of evidence is irrelevant because there is no duty to defend or indemnify and that's why a cost as absolutely correct that's why the courts approach was correct i'd like to end with one very point on a different issue which is the question of whether these claims are covered there was some discussion of westhoff three and four i want to be clear because many is of some importance to us because it falls in our policy period an omni and the three claims that preceded it omni hinds westhoff three and westhoff four are essentially identical in terms of the nature of the allegations your honor i see my time is up may finish my thought relates to west off one and two as it clearly does then it follows that westhoff for hines an omni must also because there is virtually no daylight or no will no relevant daylight between those the end of the opinion about some statements of counsel or in the briefs that related to wish stuff three alone the court did not cite to any evidence other than the pleadings in the underlying cases with regard to the summary judgment entered on every other lawsuit with regard to the claims related every other lawsuit so if we are to give the court a lower court some benefit of the doubt and and find mind through that order and find something that relates to evidence that the court bas decision on it would surely relate to whist all three there is no evidence cited relating to any other lawsuit filed against health first and to continue to beat this dead horse but there the court had no evidence it available to cite because you gave them nothing and we objected to the court proceeding based soley on the allegations and other like complaints in the paragraph that council concedes it was in our briefing we said you can't do this solely on the police the law says you have to look at the underlying facts so if the burden was on the movement the insurers to provide evidence in support of summary judgment and all they provided were those complaints and if my client as you did below said i'm sorry that's  adequate as a matter of law we did look at dinner lying facts then we preserved our record and preserved our objection to the court entering a summary judgment based soley on the unsworn pleadings in those cases what the insurers are doing here is incredible where they want to deny coverage on a related claims provision they say the claims aren't related and there are good reams of cases on this but now when they wanted to die coverage because the first policies exhausted now they're arguing they are related and what they're doing is saying hales heads we win tails you lose if we are pursuing a related claims provision we're going to argue the duty to defend test controls when that denies coverage but however if the shoe were on the other foot and we were in a position where they were arguing that the related the claims were not related they certainly would want the court to look at all the evidence regarding coverage what counsel said was if the duty to defend is not triggered then there's no inventor occasion there's no court holding that in this context where the insurer is arguing related in this to avoid coverage and that's exactly what they're doing here they're arguing issue with the a coast a court did it was three things first it was looking at a prior litigation exclusion not even a related claims provision and i would argue the coast a court ventured into territory it needn't go into that it's not our province to go over rule of florida court decision which seems to be represent the law florida is it no you don't have to follow one that's in can grow with the florida supreme court and decisions that have been issued by this court the florida supreme court and this court defend and the only logic the court could muster for doing that was the argument made by counsel well if there is no duty to defend there's no duty to indemnify that was the simplicity of the logic but the court didn't even need to reach that issue court has said that and finally acosta is not instructive for this court because it does not follow rule fifty six it's applying the florida rules of civil procedure rule fifty six does not allow to a court a case by case basis as during how much additional evidence we might need to reach a determination that flies in the face of rule fifty six this court cannot advocate the procedures outlined in a kosta for purposes of summary judgment on a related claims provision because this court requires the district court to look at all the evidence and find that there are no disputed material issues of fact again on this waiver issue there's no question hell first objected to the pleadings themselves being the basis of  as a matter of law thank you thank you