appeal arises from the wrone as denial of a judge i'm sorry erroneous grants of judgment on pleadings finding that the defendant had no duty to defend my client maysa from statutory and common while claims based on the sending faxes i'd like to focus on one procedural and then two substantive issues and the procedural issue is this it's pretty well established that you know evaluating a motion for judgment on the pleadings all reasonable inferences are to be drawn in favor of the nonmoving party and the judgment should be granted only if it's clear that the nonmoving party motion where if the motion is granted it's often the case that the district judge would allow an amendment of pleadings here if the judgment on the pleadings is granted bases over so a subject to whatever happens in the court appeals and i say that because that harshness suggests that it's important to apply seriously that standard it s to be clear that the nonmoving party cannot prove any set of facts that w against that standard the district court in dealing with the facts that issue examine the facts and noted that it was directed to new customers and that it asked for contact information and therefore drew the inference that it could not have been solicited invited or agreed to by the fax recipients because how could a new customer agree to receive a fax but that may be a reasonable inference but it's certainly not the only reasonable inference a perfectly reasonable inference would be that may stop in talking to potential customer said hey i've got this great test kit i'd like to send you a fax discussing it describing and the potential customer says sure send you the facts and then the fax goes out and says for new customers here's your discount and please if you want to buy this please give us the contact information of the person we should deal with when we send you the test kit mister shiner i thought the argument you're making is different than that i thought you were saying that mesa participated in the cigna dental rewards program and and by virtue of that participation believed that cigna dental participants would welcome blast faxing and these solicitations and therefore you obtained a list or your client did your client obtained a list and then went about the marketing solicitation by using that list is that right that is exactly correct i mean i wouldn't call it a blast fax as the court did because it was targeted to only now i don't know i don't mean it in a negative i just mean in terms of you've sent out a fax to a whole that your client did santa claus fax to a whole list of people it was a list of people that my client was given by cigna with the understanding that they were people who had agreed to participate in this works program and therefore were interested in seeing facts now for purposes of the of the t c p a claim which i know has been settled whatever maces view of whether the faxes were welcomed or not is neither here nor there right because that statute provides a defense only on the basis of a showing of prior express consent or a preexisting business relationship ok so i so the argument there that you purchase your client perceived that these would not be a nuisance that they would be welcomed it can only right that can only relate to the conversion claim or th right it's left here well i think you could relate to the relevance of it i mean do we both yeah go ahead i'm sorry no go ahead just standard for the insurance coverage issue is what was expected or intended by me so when they sent out the facts so whether there's liability under the c p a is really not the question and that's why the g s be a claim was actually se issue in the insurance coverage context is what did mason understood misunderstand that these faxes were invited when it sent them out and as long as it you know whether gives well rise to liability or not is a completely different question so that because i think it there was a set of facts that could be proved ted the district court allowed us to see that would show that mesa did not expect or intend to cause harm and that therefore this was an accident wasn't currents within the meaning of policy the question then becomes counsel and quite apart from the expected nor intended  when the policy was issued and by federal and sent to mesa it had a provision that excluded any coverage for faxes basically and immediately federal amended that exclusion to take it out of the the policy and substituted an exclusion that effectively said it would be no coverage for damages awarded under the c claims there was nothing in the exclusion that deleted coverage that negated coverage for those common law claims and because of that  the question i have is if i understand state law correctly state law treats claims as statutory without regard to the pleading if the nuisance is th statute was violated when we don't have a a decision on that issue from either the illinois supreme court or the colorado supreme court we do have appellate court going to have a couple of decisions we have appellate court decision in in the state of illinois right and we have a question as to whether colorado or illinois law applies but even assuming illinois law applies none of those decisions all dealt with exclusions that focused on the conduct giving rise to the to the liability of the the exclusion drafted by federal or the amendment to the exclusion drafted by federal took away the exclusion that would have excluded any facts liability and substituted as place only an exclusion for damages awarded under the cheese d p a and not that common law counts so i don't think there is a case in either colorado or illinois that deals with that situation what about fire fight as he doesn't mention common law yes he had a different exclusion and i think that exclusion arguably did address the argument when it didn't have there and as the case was the ambiguity created by the st delivering a policy that said there wouldn't be coverage st faxes and then delivering an amendment to that policy that said that the only exclusion was for statutory awards and reason that's important is there's a lot of there is no illinois supreme court law on that exact issue but there is a lot of illinois supreme court law on the question of ambiguity and that action by federal in amending the policy changing the exclusion would certainly lead one to believe particularly construing the exclusion of most favorably toward the insurer which is required under well established illinois law would lead a reasonable ensure and a reasonable court to believe that what federal was doing was eliminating the exclusion for faxes in general and only implementing exclusions for faxes they don't call us she fails i wonder i wonder whether there are other pending cases that  as of the last time you looked your honor we did not see any but i i would i mean if the court will allow me i'll be happy to do a more in depth look at that question and get back to our would appreciate it if you find out if there are other similar case is pending we will certainly do that here on at this point if it's ok with the court i would most there are other questions i would as to reserve the rest of my time for but certain as the un indorsed version of the exclusion in their brief that so called on in force an endorser version was never operative in mesa's policy it never took effect as such it is the quintessential drafting history it's quintessential extrinsic evidence and we know that in a contract case evidence that is extrinsic isn't taken into consideration unless there's an ambiguity now of course federal contends in the district court agreed that there is no end to do it here and the reason we know there is no ambiguity here is a by reading the plame language of the endorsed exclusion but also because we have a trio of appellate level decisions from illinois courts telling us that exclusions just like these exclusions or this exclusion bar coverage for t c p a claims including the related common law and claims the fee as he case is directly on point  the language in that exclusion is not meaningfully different from the language in federals exclusion and he also has i also should point out that counsel misstated what federals exclusion sense he indicated in the argument this morning that it bars coverage for claims under the t c that's not what it says rather it bars coverage for cla arising out of the t c p s a and that's a big difference because when you look at the allegations in the actual complaint and of course the allegations control the the initial duty to defend analysis it appears that doctor orrington the plaintiff in the underlying case went out of his way to connect the common law claims to the t example in each of the common law claims he starts by adopting by reference paragraphs one through twenty of the complaints and adoption by reference of something that lawyers do all the time but doesn't actually have a meaning is it actually significant for purposes of our coverage case the answer is yes because the same thing occurred in the trio of cases in illinois and in those cases fayaz e g have signed and western the courts looked at the adoption by reference and said yes that brings the t c p a clam within the scope of the common law claims mister cunningham all night class who just got an i understand your your argument you been very clear on it this morning and in your briefs why why if that the exclusion that we're talking about here why if that exclusion is driven by t c p a liability in other words because of the arising under language why wouldn't you write or why when your client write that exclusion in the broadest possible terms known to humankind because your honor we think we wrote it and awfully broad terms as long as the claim arises out of the t c p a it's excluded irrespective of whether it's expressly stated as a statutory claim or as a common law claim but that's along that right there is the important point insurance companies don't leave anything to chance right and they're right and why wouldn't they do right exactly what you just said in other words at the end of the exclusion put a comma in say whether the liability arises out of a statute or regulation common law judge made law an executive order an executive decree or any other form of law it certainly would have been more helpful but ultimately it's not necessary as long as the claims are alleged to arise out of the isn't even to this day there is no reference to common law there is not a reference to common law but there is a reference to the fact that it blurs coverage for claims of your honor i took your question mean what does the exclusion in this know if i if after the argument i called your client and said send me a policy i'd like to i'd like to acquire one this afternoon what would that exclusion say when they when they sent me a copy i imagine it would say something very close to what we're looking at here but i've not looked into that issue as to reason policy so i cannot imagine some really guilty relevant it's more and more curious than anything sure and the fancy case and the other two illinois appellate cases both chained to the conclusion that insurance exclusions like this that don't explicitly reference common law claims still bar coverage for those claims and the court's applied a but for analysis and that same analysis has to be brought to bear here if if  agree with you if i as the in west on the in the other one that this exclusion applies we can stop there can we not correct this issue is entirely dispositive of the case  we started out this was our primary defense below if we prevail on this exclusion as we continue to hope to do there is no need to even address the other defense involving the occurrence issue before i move on to the occurrence issue i'll just point out that the underlying complaint here is even better for the insurance company than the underlying complaints in those other three cases because here doctor or n describes his proposed class in a way that makes participation in the class even asked of the conversion claims contingent upon violation of the t c p s a because the class definition as to each of the common law claims refers to the fact that the facts advertisement in question must not have the opt out notice required by the t c p s a well by doing so  doctor orrington has expressly connected his common law clams directly to the alleged t c p claims so we think clearly this exclusion applies and that judgment was properly  are indeed rare these days your honor i almost never use mine  i indicated this issue was entirely dispositive of the case if for some reason there was some disagreement about that we all fall so have a coverage defense based on the occurren american states vs capital associates where the court has determined as a matter of law that the property damage occasioned by the transmission of an unsolicited fa necessarily expected or intended and in that case this court said senders may be uncertain whether particular faxes violate two hundred and twenty seven b one c but all senders know exactly how faxes deplete recipients consumables and then the court goes on to say because every junk fax invades the recipient's property interest in consum this normal outcome is not covered that exact same logic that rationale must be brought to bear upon this case it's impossible to send a fax without knowing the peeper names were going to be technology and they're not that many fax machines sitting around on people's desks anymore but modern faxes come by a computer and they the fax shows up on your screen no consumables are consumed how does that affect your argument that would make the case even better for the insurance company your honor because if there was nothing that was consumed then there is no property damage in the st instance for property to be damaged there has to be physical injury to tangible property or loss of use of property well if nothing is consumed and nothing nothing is lost in terms of its use then there is no property damage and one when you dig up lost still is the recipient's name so your view is your policy doesn't cover time it only covers paper correct and i would also point out that often an issue that we also confront when it when it comes to the whole question of privacy we don't have those issues here because the definition of personal injury in the policy  amended in a way that all privacy and coverage was taken out so when you if you were to read the dozens of cases in illinois talking about coverage for t c p claims ninety percent of them are talking about privacy related issues and intrusion upon seclusion none of those issues apply here we only have the property damage part of the policy in play and as we've stated it has the district court found comfort should not apply under that part of the policy real quick before i wrap up there are also choice of log contentions made in mesa's brief with regard to the information laws exclusion mesa has not identified a conflict of laws as between illinois and colorado and of course in illinois and in virtually every other state before you have to make a choice of law you have to determine if there is a conflict of laws and that analysis occurs on an issue by issue basis and in the event that there is no conflict of laws then the court defaults to a lot of the forum which in this case of course is illinois so as to the information laws exclusion there isn't even a suggestion of an actual conflict and therefore illinois law will apply the occurrence issue is a bit different they do at least attempt to now an argument that there is a conflict i would suggest that's a false conflict and that the laws of illinois and colorado are essentially the same as to what constitutes an occurrence and when the expected or intended injury exclusion the provisions and the four corners of that policy include the language that i was referring to earlier that creates the ambiguity there's no case law supporting the idea that sending out a policy that has a provision and don't think deliberately but perhaps inadvertently who described who mischaracterized the language of the exclusion who says that that it refers to claims and it doesn't refer to claim what it refers to is any damages loss cost or expense arising out of any actual or alleged or threatened violation of the t c p s a so the damages have to come from the t c p a under their exclusion and the damages that were alleged in the underlying complaint  include the c p a damages but they also in alleged common law damages which are not damages that come out of the t c p on the question of american states yes american states  faxes what we have here are not junk faxes junk faxes i think is a term that refers to mass marketing faxes that are sent out without regard to who the recipients are they just find numbers and send them out that as we've suggested was not the case here these were faxes that were sent to a targeted list of people that the plane if you're mesa had every reason to believe had invited t the question that your honor the judge used to raised about consumables yes it is certainly the case that many faxes nowadays go to computers and they may not consume paper and toner the way both old fashioned faxes fax machines do but they're still i still have an old fashioned fax machine that uses talker and paper and a lot of people do and more importantly the underlying claim that we're talking about here was one in which there was there were allegations of nuisance and conversion and at least the conversion count does is premised on the taking of consumables i think that covers the points that i wanted to make