can get forty four be like office or director in the lot if their claims are part of this i find it easier to focus on the business enterprise exclusion ok and so it's not just about arising out of it's arising your honor it basically just says very visual representation of notes we were not supervising so we heard michael negligent representation about something it's not it's not in the abstract the rest of the complaint makes clear what is a buyout there's a supreme court case on claim was negligent failure to prevent and which seems very much like what we're talking about here and the court said no that was negligent negligence i feel yours to prevent claims arising out of portion of the complaint the talk about negligence and dealing with something called how we trust our and i understand that one and so if you want to move on to that one that's fine so my understanding about that one goes these are the two that i was wondering about myself or the negligent supervision the how but the how trust as i read the complaint and it's quite express their claim is that the business needed the house that was in the how trust and could not use it for a loan as long as it was in a trust and therefore getting it out of the truss was important for the financing to c t s is not the nature of the failure to inform gratian and monica was predicated upon a self serving interest in making the property subject to the c t i low so that i did it all seems to arise our job at least in whole insured turned now attempting to shoehorn his business liabilities are now side venture into his professional life billion sure and the district court recognized that these claims fall squarely within the business enterprise and insured status exclusions resulting in the insurance company having no obligation to defend or done the thought it's insured for these particular claims and there's three particular reasons that really form the basis for that decision and why the decision should be affirmed it is emitted that the insured attorney in this situation mr burke a managing member of an outside business venture the c t o and that he had an ownership interest in one business venture of over thirty two point five percent it's undisputed that the business our process or for liability connection with a business under your american guarantees sells multiple lines of insurance and i'm certain that they they they insure businesses a new risk so he could have an additional coverage for that purpose absolutely your honor and that's precisely why the exclusions are in this type of policy that the professional liability policy is underwritten to protect an attorney for its losses arising out of it the legal practice as a wall firm and when they underwrite a policy like that they'll look at things like what type of practice do you have and how big is the practice some people do a lawyer not practice they're not looking at and basing the premium and underwriting based upon what outside business ventures you may be involved in and then assessing that risk in determining that they're going to accept the transfer of that risk they specifically don't accept the transfer of that risk by placing these exclusions in the policy and this complaint clearly arises out of the underlying plaintiffs losses because of a failed investment that he was induced to invest in by mr burke and his partner the policy is clear and unambiguous the such losses don't apply to this policy now that mr burke the insurer attorney tends to pull out specific allegations out of the complaint in an effort to create covered where it doesn't exist on this policy but  you can find this analysis to any particular claim the negligent supervision as you just pointed out the specific count related to legal malpractise what becomes of abundantly clear in a review of those allegations is he complains of conflicts of interest exclusion ate the business enterprise exclusion specifically says if the claim arises out of in whole or in part from the insured attorneys x for his cited to the potomac case from arizona all of which stand for that exact proposition and frankly support the position american guarantees taking in this case the same analysis applies to the insurance that exclusion exclusion and as the district court recognized the allegations the school point are clear that the problem the the the allegations focus on the fact that mr burke was wearing two hats one for c t guy at least  in circumstances very similar to this they said when the insurer is serving two masters his business venture and his alleged client insurance status is intended to avoid coverage in those circumstances just  where there is the potential for a cover to claim i think you referred to the growing case during his argument there is no potential for coverage in this case the brawley case dealt with an intentional person negligent act  wrong that's all right but he puts a lot of emphasis on this circuit case when the judge said i don't see why i have to look beyond the allegations  when you're turning into an insurer duty to defend you don't look outside to complain but when you look at the complaint in this case where you look at the original complaint or the amended complaint you can reach no other conclusion that there is no claim within there that potentially could be covered they did it was an intentional act well there was the potential that a jury found it was only negligence in the subsequent civil trial over the course of there's the potential for coverage it's not what you have here all of the claims are predicated upon self dealing conflicts of interest which fall squarely within the two exclusions that the district court relied upon the last issue is just this issue of any duty any ledge that the policy is in big us in two different ways that the words arising out of liberal standard of causation and an expansive review of that language it also alleged ambiguity in the words controlling interest yours the policy is the fact that the policy and black's law dictionary do not define controlling interest in the same matter does not create an ambiguity controlling interest is very clearly defined by the policy and there's no other reasonable interpretation of that language than t than the interpretation being presented by american guaranty the bottom line is this claim and it's from conflict of interest self dealing from mr burke's involvement with his business enterprise will take the matter under submission thank you very much