cites section three of primes insurance policy in support of its decision to grant summary judgment in favor of the plate section b three b generally excludes coverage pursuit alleging negligent hiring and supervision of employees the trial court rejected the arguments were these security guards and in fact my understanding is that they were security guards who were agents supervision the court's decision however ignores the distinction between the tort of need which in hiring and the separate cause led by miss woods for negligent performance of a voluntary undertaking negligent performance involuntary undertaking plead that there were some particular unfitness for position that the owner knew or should have known the employee had and that that particular unfitness was a proximate cause of the plaintiff's injury but the plaintiffs sees the plaintiffs does bashing however that allegation when read the entire contents of the complaint is unnecessary for the allegations that are put forth and if stricken from the complaint would not defeat the point this cause of action it's a collar allegation that it is really unnecessary for the complaint of a voluntary undertaking although it would be the exact type of allegation i'm talking about required for a negligent hiring or supervision worried exclusionary language that the plaintiff relies upon applies to the intentional tour of assault and battery but does not report rate the toward of need legit lee failing to prevent an assault or battery nor does it incorporate negligent failing to prevent the willful violation of a penal statute the great majority of the cases cited by the plaintiff monster are state which will on their face the distinguishing factor in those cases is that the were checking the male patrons but were not checking the female patrons and a female patron was able to smuggle a gun in her purse i think what i'm getting at is if the patron with a gun was tackled or tripped then the con accidently discharge pattern i do agree with you on that point however for the purposes of my argument i believe that it's irrelevant how or why they went off because the crux of the negligence  circuit case that focuses on the policy instead of on the actions of the defendant like the cases like the other cases cited the court and national excuse me united national review's policy language very similar to the house in which in this case case they focus upon the language of the mission by contained within the exclusionary language of policy and this language is largely hugely important as contrast in this case where the words and mission by united says justice of the defendants neighbor gents and he focuses and says that the crucial language omission by allows for that exclusion to incorporate in a negligent performance of a voluntary undertaking or an act where your negligence allows for the injury to occur it really distinguishes between the idea of the owner of base place or one of its agents actually committing the assault which would fall within both the united national and this case purses the negligence simply allowing that the written notice was given to the assured security that word general is not the strict precise word that you would expect in a claims made house a claims made policies that have a policy that requires notice because they want to assess risk the word generally allows for circumstances to exist where these three requirements are not necessary to be met on their face that causes it to fall within the cases that i've cite where the court says hey if you have actual notice of this claim and you're able to defend it then the notice requirement doesn't apply and hidden it in their complaint for declaratory judgment that they had actual notice of this cla stipulation i think least i think live here i think that the attorney was attempting to have some foresight into possible arguments that i might make one of which say well the claim was made during the second policy of this two thousand and six to two thousand and seven requirements of the policy in the post itself says that generally these must be met however that vagueness must be construed against the drafter the contract and if it allows for a circumstance that permits my client says if the accident occurs during the policy period including any policy period extended by specifically i think retroactive date stated on the declaration so how do we know what's provided in the second how it's that my other question is and maybe this is a better question to ask the other side but if if the manuscript how soon requires that that claim be made against the insurer during the paulsen period result from an accident occurring during the i was the period and which written notice is given to the insurer during the policy period what would happen if the accident occurred on the last day at the palace here and that's where my public policy a and that ensures responsibility always remains to be sure the likelihood of refusal to enforce the term will further the policy well refusal to fork and force a term of and i want to clarify one thing that came up before the retroactive date and first policy is the first date of the policy four five zero five ok now in the second policy period it would still be the rhetoric of day and for every policy after that so any accidents that happen during any policy period will be covered if the claim is made and reported in the same policy period that's what it claims made a reported policy if they are treating it like the current policy which signed off on manage their part of it of the wires it's different from the standard i s o policy they're hard to get usually to get one of these policies regulated by the only insurance exchange you have to be rejected for insurance three times by an admitted carrier that's why it's manuscript in the sense that there are worry exclusions limitations on a policy for here or here for example this is a bar it's a tavern hard to write and what they didn't want to write here and i'll g occurrence happening during any of those years would be cover so long as the claim was made on the insured and reported to the carrier in the same policy here that's what claims made and reported is ok it didn't happen but what happens if the every policy they would have issued after that is always going to have that retroactive date ok but you're asking us to assume something that's not in the record we don't have the second policy in the record and i frankly am not sure why that is but i can well the  notice of the occurrence earlier on but that's not what matters for claims made reported they have to do that to pay and they actually happen there may be a claim down the row that your typical occurrence notice which is what they're talking about actual notice just where the actual notice of an accident but the claims made reported part of the policy means the claim yes to be made complaint filed and reported the carrier during the same policy period so well either a complaint filed or a demand for money some sort of claim made by the injured party just so that we do understand and maybe you'll say this is never the way it happened i have a one year but i don't have insurance with you anymore i let it lapse well that might be things that i want covered occurred during the policy period but i have absolutely no but it's impossible for me to give  policy and there's a real incentive to renew your policy because it's got the red graph you believe her well if you're not going to get another policy you can buy what's called a tale which would say ok i'm for the next ninety days or one hundred even if you want to give the benefit of doubt and say that the notice they gave counts that was in the second policy but why would that count if they had if they had insurance in effect for both those how me why you think there's no coverage for this incident that was reported almost immediately because the claim has to be made by sure our future partner on the insured and reported to the carrier claims made and recorded during the same policy in here the complaint was filed notice claim made and reported when the worst the policies were done i don't know if they had another carrier they could have reporte occurred during the policy period where the policy wasn't in it at the time and that's what our policy says but we have a retroactive date which lets you go back for occurrences that happened over more than one policy period so if the claim was made reported in have did not have insurance coverage in effect at the time the complaint was filed by fax sat with us i'm assuming they had it with another care i don't know but what i'm asking is there anything in print that houses that that would be proper notice on our claims made report but we don't know if there was one well it's all your standard what response might push i haven't seen one i mean i was soon would be there if there was one but i think it was the complain don't know here whether a demand was made by the injured party we do not but we do know that there if we look at the letter that you just wrote back and talked about some sort of as long as you have your insurance there if if the demand was made on past place and then reported to the carrier in the same policy period then yes there would be no charge that's correct then is that something that both sets of facts written notice of this claim was given to primary right i don't know what bad i don't know what that was so you would think that was triggered by some type of that the man very wise why were they doing that it may have been i don't know i can't tell from the record and then you're asking us to assume that during the third what would have been a third policy period that the snow churns in effect i don't know if the researchers they may have had no problem there are they sure it's true and how do we know that and i don't believe they did but that there's nothing in the record that we can look to tell if that is true or from any cause whatsoever this policy excludes claims accusations or charges the bank was in hiring which is in the complaint placement training or supervision which is in the complaint regarding any actual or alleged assault and  if as is contained in the claim that was made in writing and the way i remember it is somebody was tackled in the bar of the gun discharged and bystanders accidentally shot how is that in the s transferred intent if there is originally seen and if what we know in the record is a man was tackled and the gun went off i don't i don't know what that means i don't know what it could be ok well if i could go further in this exclusion no coverage is provided for claims alleging or negligent hiring or trust me training or supervision goes for provide adequate security or other delegations of intentional if we consider the allegations the wages council tests or the allegations in light of insurance for free i'd like to make a hypothetical which would also according to that line are if an employee mopping the bathroom floor and they accidentally kicked over them knocking bucket picked up a bucket walked out the not being of the water somebody comes in and slips on the water assuming all which has been admitted would be covered by this p technically did the staff fail and fail to train that employee well enough to mop up that water shirt the employer failed to supervise an employee and say as your supervisor you need to go and mop up that water absolutely but it's not superior type allegation it's not an allegation of the employer knew that there was this sick factor of this employee pause him to increase the likelihood of injury and without that specific fact first to directly answer your question i think that negligent supervision as it's written here because it's not of the way fine should look at legal definition it's a vision which really ties into the idea of negligent detention i mean the case all refer that cause is that he will hurt children and children will give him a difference because it is ition by allowing him to move instead of cutting them out totally there they would be supervising entertain kicking over the mop bucket earlier they could finish my statement put the employer have said hey employee kicked over a bucket of water you need to go clean that up with that have been the proper way to supervise