insurance insurance company has a duty to defend and if there's any doubt about coverage those are skinny about the duty to defend those should be resolved in favor of the insured we straight forward  application of two documents we need to look at the complaint that gave rise to the insurance claim and we need to look at the policy between ages and any c i starting with the complaint it's a relatively straightforward one count complaint filed in the cab county state court and a former tenant of the c i s rovers and seeking damages under the georgia security deposit statute and that's a statute that sets forth a mechanism that landlords such as easy i need to follow when it comes to the handling and dealing with a tenants security deposit there are three types of relief vailable under that statute two of which give rise to coverage under the policy the st is relief available is three times the amount of the security deposit and both sides agree that that particular issue is treble damages not an issue in this case because it plainly falls within one of the exclusions the other two relief available however are what drive the disk drives the dispute the george security statute allows for the recovery of attorneys fees and also for the damages in the amount of the security deposit self and treble damages are triggered if there's an intentional conduct but when you look at the statute it also shows that if the defendant who has the burden in this cave easy i was able to show that this was not intentional or it was a bona fide error then that the damages would be simply the amount of the security deposit so what is the policy say the policy has a broad definition of loss mossad's have cited in their papers it includes any compensatory monitoring amount for which the insured may be held legally liable including judgments and awards there are two exclusions that the parties have braved the st is the what has been referred to as the discords meant exclusion and the nd is the treble damages exclusion also includes other things such as peanut iv or exemplary damages but that's not at issue in the case what drove the district court's opinion and what drove the insurers defense in this case is this discord from an exclusion so i'd like to start with that this is not a case of discords meant this is a case of statutory damages and when we look at the complaint you have to consider the statute that is relied upon as the basis for the sole count in the complaint and when we look at that statute we see that it's not a discordant it's not an equitable remedy instead it's the legislature in georgia deciding to fix a specific amount of damages for certain conduct or they decided to be unlawful in this case the procedures that ensure a landlord must follow to recover  security guard deposit from a tenant perhaps there could be three times that if there is intentional conduct but the landlord is not specifically required to discords anything and stead the legislature decided that this is a statutory remedy there is relief available in a specific amount they legislature chose the amount of damages to be the amount of the security deposit but they could have chosen like they've chosen another statutory regime a specific damages amount of any amount that was their prerogative but the plaintiffs unquestionably miss roberson is going to court trying to have her flanges refrain from doing a just argues that was your construe the policy as a insured may be held legally liable when you go back and look at the specific text of the statute section see it says that the landlord shall be liable only for a sum and it says a sum erroneous lee withheld they chose to do to limit the damage is that any landlord would be liable for to that amount it doesn't say go and return this money it just says this is where we're going to set the damages they are very different  and don't forget your honour's at this point in the case we're looking at the duty to defend and courts there's no dispute about the law here a just has a requirement and a duty to defend even if there is potentially or arguably coverage and when you look at just this one issue the fact that the amount that the plaintiff could recover under this statute damages in a certain amount there is potentially action in the state court complaint is an action for violation of the of the the georgia security deposit statute that's what they call it to count one violation of georgia security deposit period and that's the that's the other reason why there's coverage under the statute itself is attorney's fees oftentimes policies might exclude attorneys fees that is it's plain from the statute itself which is the only count the complaint and the complaint itself where they're seeking attorneys fees in their prayer for relief now the insurance company here has argued that the tr damages exclusion applies to this particular claim for attorneys fees and they say that the attorney's fees are damages resulting from the multiplication of compensatory damages as i understand their argument they're saying well you can only get attorney's fees if the damages are trebled in other words everything flows from the trembling of damages again looking at the plain language of the policy that says that frankly that type of position just doesn't make much sense is certainly confusing but the focus for treble damages just like the focus for attorneys fees just like the focus for one dollar recovery of damages in the amount of a security deposit of all three of those are based on the underlying conduct the legislature has said you have to do x y and z as it relates to security deposits and if you don't you're going to have to pay a certain amounts the insurance company here is arguing that attorneys fees flows from the trembling of damages and that's not a fair reading of the statute the attorney's fees the general assembly decided to have attorneys fees as an award based on the underlying conduct not because of traveling of damages so they don't need to raise this issue if we find that the exclusions mark coverage is that right that is correct your honor turns to the that's exactly right the exclusions do not bark average we don't need to to get to that but they as i understand insurance companies me back up your honor there are multiple ways to find coverage and if there is coverage and the exclusion doesn't apply then then i agree with you judge we don't need to get to those to those points we feel that the  straightforward position is these are statutory damages it's a statutory clime damages fall with the damages under the statute fall plainly within the definition definition of loss whether it's attorneys fees or whether it's the next in the lawsuit it's not in the demand letter and that's contrary to what the supreme court has said and hoover the debate amongst the case law amongst the lawyers is whether hoover applies to coverage defenses or over to or to policy defenses this court has not addressed that in a public decision we think about the language of hoover is straightforward and it says that there are three options for an insurance company but they cannot take a th and deny a claim outright and attempt to reserve the right to assert a different defense in the future whether it's policy or coverage it doesn't matter that he records did not make that distinction and and in finding the right way to interpret hoover two things one again if there's coverage this is this isn't a non issue but to the extent there's a concern about the exclusion the right way to read hoover we encourage the court to follow the straightforward language of hoover and some of reiteration of the existing law the dissent from justice melton and others would not have been necessary he correctly points out that this was a this was a change he disagreed with the change but he pointed out that this was a change it was not a reiteration of existing law like the district court said and like the insurance company has argued here so in some your honour's there's coverage under this policy it's a simple straightforward application of looking at the complaint and looking at the definition of loss we don't even need to look at the waiver issue but if we do hoover should be interpreted the way that we have set forth in our papers and the insurance company in this situation should not be permitted to  and under this statute if they keep the sixty dollars and do not comply with the requirements under the statute in petitioner giving notification of you know within three days of wire keeping the money which is essentially it would be of restitution because they're having to pay back what they took or reduction of any sums which war which are war in the possession or control of the insured or in the amount provided by statute right it said statutory damages kline right the remedy is fast action will get into how you characterize it but i'm i'm simple person it's the amount of money matters because that's the amount of money that you get back to find move into an apartment and all but the amount doesn't matter is whether it's sixty dollars or ten thousand dollars you're just saying because it's an amount you get back come within the last because you took the statute only provides that you receive attorney's fees if you are guilty of triple damages so in other words under the statu that's not what the statute says it says travel damages plus the attorney's fees and the attorney's fees don't flow from the travel damages the attorney's fees flow because you failed to  they have every wish to call the damages because of actions which were you were not able to show that you undertook specific procedures to ensure the return of the security deposit complete detail the last provisions that were in here so that those items were given and reference to being unsure so we believe that any argument there's been a waiver here is incorrect  fees are different from exemplary or peanut of or tripling damages it's an entirely different type of relief so the exclusion does not cover that and in the nd point back to opposing counsel comment that the if you see i did not do what it was supposed to do the only reason the cia is supposed to do anything under this particular set of circumstances is because the georgia legislature has said you have to do and if you don't you can be sued for damages that circles back to the fundamental point that this is a statutory claim for compensatory damages plainly falls within the definition of waltz within the policy and not subject to any of the exclusions unless the court has any additional questions nothing further from the c i thank you thank you counsel well that conclude the docket for this morning thank you again for your cooperation council and the court will be in recess until nine o'clock tomorrow morning thank you