have been before this court and the first appeal resulted in this court's reversal of a summary judgment granted by the district court on behalf of st paul based on its incorrect attempt to impose a forfeiture of coverage this court reversed and remanded and then on remand the parties presented additional arguments of the district court and we're back here again after the district court once again granted summary judgment for st paul understandably but eroni slee applying a decision of this court that predates operative decisions of the georgia supreme court which i will endeavor to explain should guide this court's analysis and lead it once again to reverse the district court in some this case involves a circumstance where the insured had no intent to transmitted faxes to unwilling recipients that lack of intent and the nature of the claim made issue under the federal t c is essential to the coverage questions that are presented because m f g dot com believed it was acting properly had the consent of the recipients and did not intend to injure them it acted negligent deliberate act performed negligently is an accident if the result would have been different had the deliberate act been performed correctly and that conclusion is entirely consistent with georgia law as it has evolved since this court's decision in mn dismantle and those decisions can be reconciled to the georgia supreme court and hathaway firmly jettisoned the absoluteness proposition that it provided much of the case law namely that unintended consequences of intentional acts cannot be an accident for purposes of insurance coverage the hathaway court absolutely held that it deliberate act performed negligently is an accident if the effect is not the intended consequence and in fact the dissent in that case points out in stark terms that at least in justice mountains view georgia law had been to the contrary prior to that decision that georgia law had been that an accident could not result from intentional behavior for purposes of coverage instead as the dissent notes in hathaway the majority opinion stands for the proposition that coverage is available for unintended injury caused by intentional acts now the tailor morris a decision the injury here the use of the machine and the ink that was intended correct when you send a fax that you intend to send you are going to occupy the machine and use the ink it says that's correct so that our that isn't is a paid that is correct as far as it goes that's right the reason why this is an interesting situation actually and i'll get into taylor morrison in a moment but the reason why that isn't dispositive of the question before this court is because in the circumstance had the sender believe his belief been correct that this was a willing recipient there would be no damage this is not a case where like an auto accident work if there's a crash there's always compensable damage here if you send a fa willing recipient there is no damage there is no harm they got the facts that they were willing to receive it's only because it was an unwilling recipient that there is actual could nies will damage and that's because the t c p a says you can't do that and it taylor morrison i think will help explain that because to morrison was the follow up case from the georgia supreme court and it shed light on how this law has a has evolved in georgia in that decision the court recognize or the premise of liability is one based exclusively on the existence of intent such that the notion of proven liability for of an accident is mutually exclusive then the absolute rule should illustrating the point the court walk through the two different theories of relief in that case that all stemmed from an operative nucleus of facts although the elements were different and that is breach of warranty and fraud both arising out of the same basic factual genesis the court first concluded that the fraud claim could not give rise to a potentially covered occurrence because intent is an element of that claim and damages for fraud could not arise in the absence of intent or in other words fraud damages could not arise from an accident on the other hand the court held th because the breach of warranty claim is one of strict liability and can be proven without showing intent or in other words warranty law imposes liability regardless of intent or culpability the fact that the precipitating act was an intentional act does not mean that the unintended consequence of that act couldn't be an accident while it's true that the decision arose in the context of a faulty workmanship fact pattern there's nothing about that opinion that limits its import to that fact pattern or to that scenario and that's why the later decision of forks timber which the district court relied on a case that intentional acts with unintended legal consequences not actual consequences unintended legal consequences don't cover an accident why can't we limit hathaway to simply faulty workmanship i would respectfully suggest that hathaway as it is later developed into a morrison suggests that that's not the case here that the georgia supreme court made some fairly broad changes in the in the law on point and that there's no nothing in those cases that inherently says that they are morrison was a case that involved a claim under strict liability and in that respect it is absolutely like this case because the t c p eight claim is also a strict liability claim you are liable in under the t c p in strict liability regardless of intent regardless of whether or not you sought to violate the act whether or not you sought to do any harm the mere act alone gives rise to the potential for liability and that is the that doesn't mean that in describing the factual genesis of of of half the way the court was saying that it only is important in that context there are some fairly strong statements in that case in both of those cases that i think can guide this court to believe that the georgia supreme court has has moved beyond the absolute his position and is not simply taking the position that we're going to carve out one small little area of the law and leave everything else alone i don't see anything in those cases i respectfully suggest of the court that there's nothing in those cases that suggests that that is in fact the way those courts should be read and if you look at them in that context if you consider it that the court in taylor morrison was creating this distinction between strict liability cases and cases that involve proof of intent and you walk through that case and i did again last and i was again surprised at how starkly they did that when you look at that the other cases that we talk about and were talked about even in this court's earlier decisions are actually fairly reconcilable when you when you go back to make ron iron which this court looked at in this model the court which was pretty hot and pretty tailor morrison there the court was addressing claims arising out of we'll call it unintended cutting up of scrap a rail cars for scrap when they built under a false belief and the plane of such damage is under three theories record tearing fraud and conversion and although the court didn't have the benefit in that case of taylor morrison's analysis because it came much later it actually reached fundamentally the same result that would be required under the analysis that the court used in taylor morrison because each theory of liability would require proof of intent none could give rise to accidental damages fraud isn't requires intent record tearing requires intent and under georgia law conversion requires and ten and the same analysis applies to the more recent decision of forks timber which came down after hathaway but before taylor morrison forks river as i mentioned was relied upon extensively by the district court but a close reading shows that it is also distinguishable from this case and fully consistent with taylor morrison in forks timber the coverage dispute arose out of alleged improper cutting of timber by a defendant who mistakenly believed he had the right to do so the underlying complaint sought damages for conversion and only conversion and the court highlighted that fact and that conversion under georgia law requires proof of intent not by the way at the consistent among other states for example an oil law allows proof of conversion negligently but here in georgia the courts have made very clear that that is inherently an intentional tort because conversion cannot be performed negligently the consequential damages couldn't result from an accident and the court forked timber did not have the benefit of taylor morson and spent a lot of time on the notion that erroneous beliefs cannot form the basis of the next event in order to reconcile with hawthorn hoth the way and make her an iron but the proper analysis is established by the later supreme court decision in taylor morrison thing i'm running out of time but i would be remiss if i didn't touch on the the fact that the same analysis applies to this court's decision to mendus metals which was substantially based on make on iron in long period dated taylor morrison in that case as well the claim was for conversion under georgia law and because conversion can't be proven without proving intent the analysis that was established in taylor morrison would guide the court if it looked at it today to reach the same result for a different reason but nevertheless it is consistent with georgia law as it has evolved here we have a strict liability claim like the warranty claim until of morse in the t c p a claim here can be and is proven without proving intent and that's why taylor teaches us that under georgia law as it has evolved this case is different from the conversion claims the trespass claims the fraud claims that are inherently intentional claims and could never be a negligent root and negligent act or give rise to negligence damages or accidental damages the resulting damages here like those for breach of warranty until a morrison resulted from an accident under the coverage terms of the policy ultimately because m f g believed that it had the consent of the recipients and did not intend to injure them and its liability arises in strict liability the claims are a covered event and not excluded and st paul has a duty to indemnify this court should reverse the district court again and enter judgment in favor of g m sign in the class and with three seconds to go if the court has no further questions i will wait my  may please the court house will my name checks be back i represent the st paul fire marine insurance company your honour's the nature of this case is one that requires pursued in the language that he used and that's the fatal flaw in the case because the balance argument is not precise in terms of the argument that it makes before the court if flip flops between the question of intent to cause the property damage which is the prerequisite for even considering whether it was done intentionally or not with the property damage alleged by them to be the consumption of the recipients consumables and time paper ink and time but then when it suits their purposes they flip the discussion from talking about intent to cause the property damage which is the trigger for coverage vs intent to be suffer the legal consequences and georgia law very clearly even after the hathaway decision still looks at intent to cause the property damage not whether it intended legal consequences and judge ross's order granting st paul summary judgment in this case recognize that flayed all fall in a parent's argument is that if you are going to try to justify a twenty two and a half million dollar confess judgment as being compensation for the compensation the paper ink and the person's time so as to try to bring the case within the insurance company's coverage for property damage you can't then shift gears and say there's coverage for that expected property damage because you did not intend to be liable for it the insurance policy says that the property damage that must be caused by an accident and not the insurers liability for it and the georgia courts including this court interpreted that language as saying precisely that now we know that this court in the metals vs transportation insurance company case clearly held that when talking about damages caused by an accident in georgia an intentional conduct premised on a rony us information or beliefs is not an accident and that rule has not been changed by the subsequent decisions of the george appellate courts including the supreme court in hathaway and this is best explained not by me but by the southern districts opinion and capital city vs forks timber as judge wo eloquently noted in the capital city case hathaway does not define an accident as an intentional time to act causing the intended physical consequences but which results in unintended legal consequences perhaps hathaway opens the door to coverage for a temper company that negligently acts that niggly cuts down a tree causing the tree to fall in question automobile on surrounding property  but the case does not however support coverage for the intentional harvesting of timber the harvester mistakenly believes to be free from legal incumbrances and that's the perception in language that must be applied to the courts alice is here because if the ensuring a grant that is going to be met is the claim that this case presents a claim for property damage with the property damage being attempted to be defined as the consumption of paper ink in the recipient's time and if that property damage is required by the policy to be caused by an event which is defined as an accident then the inquiry has to be on whether the property damage the consumption of paper ink and time was accidental not on whether the insured expected the legal consequences of its act and in this case judge priors your question indicates it is absolutely the natural and expected consequence of someone sending a facsimile pushing that sand but that on the other end of the line that person's pain is going to be consumed their papers going to be consumed and they're going to have to spend a modicum of time looking at what the machine spits out as as was concluded by the i'm sorry as was concluded by judge wood in her opinion talking about the hathaway case georgia law does not view erroneous legal beliefs or unintended legal consequences as the sort of unintended consequences necessary to constitute an accident so using as the factual examples of the cases which have been decided by the court both before during and after hathaway the natural and expected consequence of cutting up railroad cars and using them for scrap as if they are no longer available to the rightful owner regardless of whether you believe you have the right to do it or not the natural expended consequence of cutting down a tree is that the tree is gone regardless of whether you understood that you had the right to do it or whether that tree was in cumbered and in this case that the actual and expected consequence of sending someone a facsimile is that it will consume the recipients and the recipients paper but the natural and expected consequence of faulty workmanship is not necessarily the surrounding property will be damaged the work itself yes but neighboring property not necessarily no and judge cars this goes to your question there clearly is a distinction in georgia law between faulty workmanship cases and all the rest because for example you the situations we're talking about here if the insured installs a four inch pipe as opposed to a six inch pipe as called for in the plans which is the facts an area of hathaway there's no question but that it failed to follow the plans and an insurance policy isn't going to pay to put in a six inch pipe when it was supposed to put in a foreign pipe instead but if putting in that four inch pipe results in some sort of leak or explosion or whatever that causes damage to the neighboring property then what the court  says is that damage to the neighboring property is not expected or intended from the standpoint of the insurer that it was accidental but if the issue and hathaway was do we have to put in a six inch pipe does the insurance company have to pay  recurrently say no and that same rationale as indicated by the georgia district court following athel way applies to this circumstance if the issue before the court is whether that property damage that damage was accidental then putting in the four inch pipe clearly was not accidental in this case however that damage is to the recipients paper paint and toner and that clearly was not accidental it was no more accidental so again i think that they had cases distinguishable from this case because it fits more within the idea being that you can do an act that you intend to do but if it results in damage that is purely fortuitous we are not going to announce a blanket rule in georgia saying that any sort of intentional act will result in complete loss of fortuitous damage is the situation that we talked about in the hathaway case they intentionally didn't follow the plans or they clearly didn't follow the plans but they may never have intended that a four inch pipe as opposed to a section's pipe would have resulted in damage to someone else whereas when you push sand on the fax machine there's absolutely no question you're intending that the other person's consumables are going to be consumed and if that's what the basis for their huck for getting coverage to start with is going to be look there's property damage in this case because you damage someone else's property as opposed to arguing that really what the liability here for is for violation of a statute that imposes a fixed amount of a fine you know as a result five hundred dollars per fax or up to fifteen hundred dollars for facts if you're going to try to square that peg into the round hole buyer get what this is really a property damage came then you have to focus on what the property damage is and whether there's any question that that property damage was fortuitous or not you know i think there's an instructive case that wasn't in our brief because it was brought to our attention as a result of arguments that were made  reply brief that talk about this circumstance in georgia and what's the state of law in georgia following the decision of athlete case and interestingly it comes from a very lengthy discussion by a federal district court in maryland the united states district court in maryland  assess where the law was in georgia and the court concluded that accidents have accidental causes which are defined as an intentional acts georgia law distinguishes between intentional acts that cause accidents and thus unintentional injuries and intentional acts that may nevertheless also cause unintentional injuries only the former give rise to accidents intentional acts cannot do so thus the inquiry must focus on the intention behind the act that caused the unexpected event so in this case what they want you to focus on is that we didn't expect to violate the law but georgia law requires you to focus on the act and in this case the act was clearly intentional pressing sand on a fax machine results in the natural and expect a consequence that paper toner and time is going to be consumed on the other end and if you are going to try to characterize this case for insurance purposes as a case seeking damage for paper toner and time the loss of that paper the loss of that tone or loss of that time was clearly not accidental it is the natural and intended consequence of pushing send on a fax machine and your honor this is the majority rule and other jurisdictions that have considered this issue the cases cited  appellants basically focus on the laws of three states missouri illinois and north carolina but the third circuit the fourth circuit applying new jersey law virginia law pennsylvania law courts of appeals involving california law courts of appeals involving the arizona law ohio law and texas law all concur as the third circuit said to him brother vs st paul involving the same policy language the consumption of a fax recipient's toner and paper is the intended consequence of the insurance intentional act in sending the fax and is therefore not accidental within the meaning of the policy and most recently as the ohio court of appeals said in the appellants may not have intended to violate the t c p a the act they did intend to send the faxes and knew that sending them would use the recipient's paper toner and time now your honors there is also in effect here as separate exclusion exclusion for property damage expected or intended by the standpoint of the insured which is not argued or addressed in appellants briefs ok or it can reach that that the court didn't you interpret it correctly the effect of the insuring a grant requiring the property damage be caused by an accident is essentially the same as the exclusions saying that we will not provide coverage for bodily injury or property that's expected or intended from the standpoint of the insured but if this court were to disagree with judge ross and adopt the appellant's reasoning and say that the accident requirement of the insuring agreement somehow refers to the legal consequences of the act and not to the property damage itself then the policy is exclusion still requires it be the property damage that not be exact it's an insight into the post two thousand and  claims correct note your honor that exclusion is contained in every policy the post two thousand and five policy contains a specific exclusion that talks about unsolicited communications as a more specific that's correct act finally your honor if this core were to disagree with judge ross the result would not be as appellant say or suggest the same policy stopped from contesting the reasonableness of the twenty two and a half million dollar judgment for paper toner and loss of time or any other issues with regard to the entry of that judgment this is a stop will rule is in illinois a rule not based upon an illinois statute it's a common law consequence of a breach of contract in illinois and this case we're dealing with the georgia contract being litigated in the georgia court and georgia law clearly does not allow for the result of a stop well as argued by the appellants here as this court noted in briscoe versus  georgia sprinkler the choice of law rule followed by the georgia courts is that the application of another jurisdiction's laws is limited to statutes and decision construing those statutes were and if there is not a statute involved georgia courts are going to apply the common law as developed and georgia if you were just to or disagree with judge ross's decision at the court below georgia law would allow us to litigate a number of issues that have not yet been litigated including whether twenty two and a half million dollars is in fact reasonable compensation for the loss of some paper in ink whether coverage was it excluded under the two thousand and five to two thousand and nine policies on the basis of the specific exclusion judge current we were just talking about and if that exclusion doesn't apply we'd be allowed to litigate whether it's lack of applicability would only be in its first year of coverage or in the first thirty days of the first year of coverage as set forth by the georgia statues but i think all of these issues i bring them up only because they are raised in the reply brief i don't think you have to reach them at all georgia law is clear this case is excluded because this damage was not accidental thank you  about precision that's not a legal believe the actual belief and when counsel talks about the fact that we can't look at the legal it is our property damage is gone hypers gone it's just that the person who ink in the paper that's ok with them they agreed to her and that's correct and therefore there's no claim there's no cognized will cause of action a legal claim that there's property damage no there's no property damage if if there's consumption of those goods or but there's no property damage as defined by the policy or the law if you've agreed to allow someone to use it then there's no damage it's gone the papers but you haven't been damaged it's been consumed but you haven't been damaged and when counsel talks about legal consequences again word he wants us to focus on precise wording this policy doesn't cover property damage it covers some so that the insured becomes legally obligated to pay because of property damage and there is a distinction there so when he talks about oh twenty one million dollars gosh what a shame you know there's only a nickel's worth the property damage that's not the questions presented under this policy the language of this policy requires them to respond to the legal obligation that arises as a result of any property damage here the property damage resulted because these faxes were sent to people who didn't wish to receive them and that was a misplaced belief it was a negligent it was an accident but that doesn't necessarily mean that if someone falls outside the coverage of the policy simply because it's a legal consequence the fact is the policy covers legal consequences in that two minutes went by very quickly i'll stand in my briefs thank you very much thank you for s