are actually just two and i'd like to reserve four minutes for a bottle thank you your honor there are actually that four major issues here and i'm saying four are not the seven or eight that we listed because they apply  equally to callaway and america which were the two on the line lawsuits so i'm going to deal with them together there are two that i'd like to put off unless your honour's have questions on them and they're the terminations and bad faith issues by terminations i mean the term nation of the duty to ruling not to our knowledge and we have searched the records and served with you know we have not and to be clear because the basis for the reversal was lack of federal jurisdiction they would be filed individual state court and notice claim exclusion and the other is what swift distribution cause the intersection of first amendment law disparagement law and contractual and insurance coverage law and so i'm going to spend actionable disparagement and the other is whether or not if there wasn't such a statement in the third and then the complaint in america tox we the insurer darwin were charged with duty to go out and ferret out information that why start with that then because i think that that's a pretty discrete issue and was an independent basis for judgment that we lost the prior notice claims exclusion says as respects all ensuring agreements so applies to every ensuring agreement in the policy and which means both the g l or general law there would be which includes advertising injury which is what we're here talking about today as well as claims relating to other kinds of coverages like claims made coverages and there's no question that it begins with as respect all as respects all ensuring agreements now it goes on your honor's to say as respect on china green and this policy shall not apply to any claimant and there's no question here that the only thing covered is a claim which is a defined term in the policy to any claim claim would be spared no the claim is defined to be that well if they had a claim they would say it was a new dispar claims because it's not because what this says is to any claim based on or in any way involving an insurance coverage long we cited this in the brief that's about as broad language as you can get it claims policy than an occurrence policy and we've got this overlay here can you point us to a case that melded these concepts together in the way that you're saying they should be melded together in this policy well first off your honor i think we did cite cases that say that  prior knowledge private prior claims even an occurrence policy apply but more important your honor and first answer judge collins question and then to get to your question in the second new occurrence that leads to new claims in an existing suit wouldn't be covered that's the counterintuitive reading that's correct your honor under a literal reading of clear language what it says is can you point to a case that has applied to such a clause in that way because if you have cited it i didn't see one that was like that now i can't nor can they point you to a case that has said that this doesn't get applied and to be clear your honor it seems counter intuitive i mean let's assume that there had not been any litigation at all up until these statements were made in two thousand and twelve and then the claim is tendered clearly that would be a tender claim of disparagement arising from the price presentation and your argument seems to be that by filing suit earlier where there is no claim of disparagement that this any suit somehow immunizes the insurer from a subsequent new occurrence giving rise to a covered claim well here i'm just this can i tell you why it makes sense  first off it's the clear language and there's been no successful attack or even preserved attack from below that it's ambiguous it should be reformed words against public policy and a waiver and correctly that broadly well but it's not that's your position i don't think that's clear at all in the language well first off your honor they didn't even argue ambiguity until for the first time in this appeal and they cited no case law for the proposition that this language is unambiguous and this language has been applied in the claims made context but your honour's the other thing is it says any act where suits reported to any policy of insurance in effect prior to the inception date of the policy so there's no question that as applied to the facts in this case both of these actions have been reported to travelers and chop and more important your honour's because this takes care of the apparent unfairness which was their argument in the trial court their argument was this is unfair in this context except in this context these suits have been going on forever putting aside the issue of whether or not paragraph twenty eight in the america acts matter where the callaway answers were disparagement claimed they weren't but putting aside those issues if they were which is the assumption i'm working on with your questions this is not the case to say that there are unfair because they had maybe discuss your disparagement argument but why would not statements by the general counsel of the company that the competitors are in gauged in illegal practices that they have a d o j compliance regime that they're they're selling bad science to to the doctors because these test kits don't really do what they're promising the doctors are going to do why isn't that disparagement to me that seems to be pretty clear  two answers to that in honor first those statements were never tendered to us and remember i said there are two parts to our disparagement claim one is is the language disparaging under the law and the other is was it pen or did we have a duty to know about it paragraph twenty eight and then i want to step back practical to for a second there are two things here there's the america and the callaway callaway was never amended it was the same counterclaim as before our referred to the tender to us as well as travelers and child on callaway and america talks was the paragraph twenty eight reference everything else tied directly to what was already at litigation but this goes more directly to judge thomas question we it's cover your sponsor that alleged disparagement you had a complainant and other competitors case and disparagement you had a lot of things in your files suggesting that there might be a disparagement claim even if it was only in this amended paragraph so why aren't you supposed to figure out well maybe there's this marriage except we have two different claims and what happens in callaway is not something that you can connect necessarily to why america talks is suing and this has a practical difference in distinction we learned on the eve of trial in the case below that what was left in callaway their whole claim against us was forty five hundred dollars four thousand five hundred dollars they had total defense costs of nine hundred thousand dollars and ch that tell us whether it was this version or not what my point is the reason it's relevant is that was a separate claim your honor had nothing to do with the twenty five million dollar demand for defense costs in america cox so that if and we knew it had already been tendered to other insurers and this is this is the point your honor swift was decided three weeks after we lost summary judgment on a decision that discussed why we lost it in two paragraphs and i think it's important to put that into perspective at the summary judgment hearing we got for the very first time in advance in connection with that hearing are some reach iseman we got the so called talking points in this case and we've got i don't i don't think you need the talking points it seems like when you look at the information you had about this company people are making allegations that they're disparaging their competitors and if you look at all your files you probably would guessed that that might happen now it might not but there's a possibility of disparage one that's where i respectfully disagree for two reasons your honor one that's not what's with distribution said and so the first thing what we did at swift is inconsistent with the idea that you should generously look at the information you have to see whether there's a potential claim because swift was concerned the supreme court of california was concerned and i'm almost down to two minutes so i with with your honor's to get a word in edgeways clark well swift callaway discovery response that set that made clear that even callaway was bringing a disparagement claim there was nothing that said that your client was sorry that sure it was making false statements about their products i mean as far as i can tell met the criteria what's also your honor flies directly in the face of gunderson bok micro tech and i'm not sure if we sighted might protect it cited by the other cases that we discussed all of those and might protect in total call and total call was the decision we argued to the trial judge says that you don't take into account expense of evidence or take into account whether there could be a disparagement claim you look at what was actually pled read paragraph twenty eight paragraph twenty eight says we will destroy our competitor at any cost more or less it had the use of the body bag implication a gunshot wound it doesn't say in paragraph twenty eight in the america ox complaint and we're going to do that because their products stink and that's what there's a good reason for that it may be they don't want to bring a disparagement claim the fact that one may exist and i really do want to save a minute ok just stop now thank you good morning your honor is mark halperin for millennium why i'd like to start because the court started with the prior notice exclusion was a misstatement of the record by opposing counsel where i'm not sure it's needed  but he stated just a moment ago that we did not preserve ambiguity and on page eighteen of our motion for summary judgment there's a section titled at the very least the exclusion is ambiguous we did raise that issue with respect to the prior notice exclusion and the court seems to be fathoming the very important standard here that exclusions are to be narrowly construed and we're talking about a potential for coverage standard for the duty to defend and the cases cited by counsel as the court points out all concerned claims made coverage and typically concerning very different types of exclusion actually a prior litigation exclusion here we have a even the cases that they cite to interestingly enough in reviewing them for the hearing themselves even go through for that different type of ensuring provision still go through an analysis of what the actual acts were offenses were and whether they relate to each other and in a duty to defend standard you don't go to the merits if there's an allegation that some claims they relate so we cited to endure and so on that and there's a number of other cases on that the so the key fact here of course is that the power point presentation did not exist it did not take place the statements in there did not take place until the darwin policy period and we don't have coverage for that under the prior policies it's a discrete event and sufficiently discrete that america talk saw fit to amend its complaint specifically to address the possible disparagement allegations arising from that complain and i think the next part of the analysis would be to just look at the policy language and as we pointed out in the briefs the very ensuring agreements of the occurrence of policy provisions so the ensuring agreement pertaining to personal i am advertising interest keyed once again to the specific offense so it's it provides coverage as a result of a claim alleging personal or advertising injury caused by an  fense that takes place during the policy period so that the trial court got exactly this record got it exactly right that this is a potentially discrete claim triggering coverage and the other part of the policy that would be inconsistent with their we think or another part would be the fact that this is it's not a part of litigation exclusion once again it's an exclusion where if we provided notice to this other insure previously then somehow coverage would be eviscerated and that's inconsistent with the other provisions in this policy there's a clause a subrogation cause for example that requires us to preserve darwin's rights against third parties and that includes insurers their claims it's in the record their claims adjuster testified that one of the requirements of that condition is that we have given notice of other parts of these lawsuits to the other insurers so that they get your position  it may very well be that travelers was on the hook for that part of the case that arose during its policy period but now darwin has to step up and contribute to the cost of for the entire claim and the way it ended two jurors companies fight it out with one another as to what percentage of the defense cross examine that's in fact why per occurrence coverage exists as a way for insurers to share the risk of defending the case and then of course if there's a judgment or settlement then you go to the merits of what parts of the liability pertain to which policy to say we agree with you that the exclusion isn't a problem for you you still have to show that there's a potential claim for disparagement here and it's a little troubling that the notes weren't produced at the tender so can you speak to why that was the case sure your honor and  i will say that on that point swift is actually a fantastic case for us and our circle back to that the first answer your question i try to stick to the record by believe it's in there at trial that millennium believe that  the complaints themselves the discovery sponsors was easily sufficient under the law to trigger the duty to defend and the way it works is that's typically what you provide insurance policy say give us the complain and the expectation is that they want anything more than they ask for it and in fact the tender letters and with the line if you need anything else just give us a call travelers another inch or they tendered  to darwin as well to share in the defense when this power point issue came up we didn't even know about that at first but they did the same thing so even insure recognize that standard and judge huff and judge was shot recognize that standard as well so i don't think we're in the wrong not to provide the notes there was a sensitivity there your position that the paragraph twenty eight itself alleges disparagement or just that it alerts the insurer to the potential for disparagement i think it's a pretty hard argument that under swift to the insurer and the case of swift the court mentions that look the policyholder had this sales catalogue and we've asked why the insurer asked for it that was available and so that becomes part of analysis as well so the notes do become part of the analysis according to the california supreme court but as that then sure didn't know there were notes at that point right there may or may not be notes that go with the powerpoint it turns out there were but nothing in the complaint said and we know from the notes or something like that that would have told them to ask for the specific document well your honor it was the first of all those obvious the powerpoint was the centerpiece of what we're talking about we mentioned in the tender and a power point in and of itself inherently that actually there was testimony in the record by their claims adjuster who as a person most knowledgeable who said i understand that a powerpoint includes slides i understand includes notes and a minimum they should have asked for it is the point and then they would have gotten it what happened instead was that they placed themselves in an adverse position to us by denying coverage and it came out later that basically they decided that and this is in the trial record they basically decided that they were just going to deny coverage and this is a highly also said you can give us any other information i mean both sides were kind of blaming the other for not asking for more information right so for not providing more information when they denied coverage why didn't you send the notes because at that point they put themselves in an adverse position to us this is not just any document i will say this document was being sought aggressively in discovery by america talks in the underlying case and there was a fight going on about whether it should be produced and what redacted form or what not i believe it's in the record that if they had asked for it they would have gotten it but in stead but no fight because you were claiming one work product or no i think if they had if they had put themselves instead of an adverse position to us if they put us up themselves on our side and said hey look we just want to learn a little bit more about the power point then tell us about it and we think there's coverage there and i don't think they need the notes in order for us to establish coverage but at a bare minimum they were on notice them that's correct and i believe it's somewhere in the record if it's not i apologize but we were actually in coverage litigation with them or their parent company regarding another policy at the time and so it became clear immediately based the fact that in ask for anything that they were putting themselves in an adverse position we're either going to sue sue us or we have to sue them i mean as a point of great frustration for millennium and for travelers frankly and  i will say it's interesting course of conduct evidence this place to both the power point issue and the exclusion it so happens but there are other cases where there was less money at stake and darwin said ok we'll provide a defense object to a reservation of rights and we understand travel is the fending and for you know we're only on the hook for the portion that concerns occurrences during our pilot policy period name y the power point will split the fence fifty fifty and that's in the record this is the chari case so this is a completely what was the difference between this case and the car even universal or fluids in this case was fifteen million dollars at the front was a big case and the power point was a huge centerpiece of it and has been heavily litigated with respect to this as well talk about swift for a moment more the court has interest because i think that  on the disparagement criteria that darwin is really significantly over extrapolating the holding a vacuum so i think it's a great case for us a great case for policyholders and the issue there it's that the court doesn't set up some extreme extreme standard where you have to provide infinite detail regarding a particular statement and against the product of what that product was i think everyone would agree and supreme court of course would agree that if you said something your pleadings a simple as look they they said defamatory things about our business approx and that would qualify as it has to be false right and the description of the powerpoint didn't describe anything that would be false it was just like you know put them in body bags that's not really true or false type of statement is it the swift does not require that falsity be plaid in fact as other california law on that need to specifically plead falsity just that your this with test once again was part one was that you identify the companies you're talking about either implicitly or expressly and that happened here cal over and the court said just a white washing a mural doesn't count as a potentially derogatory statement towards someone or something but if they alter the mural i thought this was interesting the court says that if they had altered the that changed in some way the maybe that's a statement about the the other side so i don't know maybe a picture would meet that criteria but more importantly i don't i'm not sure this is relevant with the death of the compliance officers competitor with a toe tag that said america talks on it or callaway and i don't think there was an actual death of anyone involved as far as i'm aware there was i apologize yes i understood the briefing i thought there was some reference in the record to the fact that to run out of time sure it for the did a stand once the america talks claim is on appeal isn't it clear once the trial is over there's no disparagement claim i don't really understand why the appeal at that point required duty to defend it right and that also was a close call and we cited the prichard case which basically says you look at the particular circumstances of the time but what circumstance left a claim in a case that didn't have that claim by that point it's a good question your honor at the time they filed their motion there was actually a motion for new trial pending but if there had been a new trial granted couldn't you have filed a claim for coverage at that point i don't understand why they have to cover the appeal in the meantime where that's not very likely outcome anyway this was appeal at the end there was an initial verdict and they were pending motions for a new trial at that point darwin moved to terminate the duty to defend and we told the court look there's pending motions for a new trial this is even up on appeal  yet the whole thing could be related gaited for all we know and the court agreed they might have had an argument if they filed a new motion at the time of the appeal to say look now there was no new trial granted the appeal doesn't include anything relevant so now the defense terminates and they probably would have had a good argument the preacher case recites with the exact circumstances we have here just procedurally all that counsel is all that darwin is appealing from is the motion where they had moved at the time of the first verdict where there were still new trial motions pending at that moment pre appeal so you say the dispute is whether they had to defend the motion for a new trial and they said the issue is whether you had to defend the appeal i mean is there a mismatch about what you guys think is at issue with that part of this case there maybe they had only asked one that and then there's a motion for reconsideration i believe they filed they had only asked the trial court to terminate the duty to defend at the end of the underlying case i believe so so at that point is there any reason to think if you had won that motion that they would change what they were asking for i mean by that point the whole trial had happened and there was no disparagement they might have very well change their so much on the power point the underlying case of the new triathlon's don't understand why if they did that you couldn't file a claim that it seems so unlikely that that a case that didn't have a disparagement claimant has finished really is going to suddenly have a disparagement claim that they need to keep defending it at that point because of some tiny possibility it could trigger a new claim if it happens i'll see if i can survive second for i think that the court got it correct that the time the new trial motion was pending because the powerpoint had been such an issue that just like in prichard you look at the particular circumstances that was not good enough i think that it could have been terminated at the end of the when the new trial motions were denied but they didn't ask for that and then at that point we we actually filed a supplemental brief in the trial court after the verdict after the fifty or sixty special verdict questions were answered saying to the judge obviously no disparagement claim and by the way america talks wasn't appealing they were there was no it's important to realize these cases have gone on for a long time they gave us what they wanted us to have when we asked them in discovery please give us whatever else in this case you think proves your coverage they refused to give us the power point presentation if you think competitors sometimes being sued on counterclaims and had been dealing with their prior insurers and our coverage and this goes back to the claims made issue to was not replacing exactly what they had before and their general coun had negotiated it with a large broker it had exclusions it had different coverages to protect the company so we didn't have an obligation to try to figure out whether coverage claims being defended by travers in charge in others might actually says there was evidence of a disparagement claim but the plaintiffs suing micro tac had good reasons perhaps for not bringing it and that gets to the other issue your honor it's a very practical but it's set forth in micro tact and it's also set forth in swift distribution in the in the narrowing language because with distribution took the line of cases that narrowed what could be a supportable disparagement claim in the covered con coverage context and by the way the product catalog was actually referenced in the complaint in swift distribution there were no notes referenced in this complaint but in any event in my quit tech the court said sure there was a disparagement potential claim but for whatever reason the underlying plaintiff may not wanted to have brought it here the same thing if it turns out that some extensive evidence that iran is referring to might have suggested there could be the necessary inference and that's the language it uses it's almost a clear and convincing standard that swift sets forth to identify the product identify the customer and have a phosphate minute fact that puts it in a derogatory way and this is about disparaging a product or service which paragraph twenty eight doesn't do the necessary inference must be tied to a claim and america ox never brought that claim and had good reasons not to swift also says look at the whole complaint it was a two hundred nine paragraph complaint two hundred nine paragraphs said we see no coverage but we want you to tell us if we're wrong and give us what and we did the same thing here two weeks later we were sued that's an answer to your question two weeks two weeks later we were sued and this was one of