next case on the calendar is spandex house the hartford fire insurance may it please the court my name is richard sharyn and i represent the appellant spandex house in this matter at issue in this appeal is the exception to the amended intellectual property lucian spandex house has made a number of arguments and it's a brief and the st argument that i would like to speak about is the argument that the provision is at least ambiguous under new york law the terms of an insurance policy are interpreted according to the expectations and purposes of the ordinary business person and this case we submit that an ordinary business person would apply the proper rules of grammar and punctuation to his or her understanding of this clause and if you read the clause speaking of the exception as it is actually written which in ordinary business person would certainly do and it should be understood to mean that coverage would be provided for insurance up for infringement of copyright i would note that in this regard the advertising element is still of course required since it is still included in the definition of advertising injury that this is the meaning that an ordinary business person applying the proper rules of grammar and punctuation would give to this particular provision the accepted rules of grammar and punctuation in this case dictate that the clause inserted between the commas specifically the clause in your advertisement on your website is a non restrictive clause indeed that is why we believe the commas were added it was intended to be restrictive as the hartford maintains and there should be no comments in fact an interpretation that complies as i said with the proper rules of grammar and punctuation should be the default interpretation we submit that it is the hartford that is asking this court to disregard those those rules of grammar and punctuation to ignore the commas that it inserted that the hartford inserted into its own policy terms you therefore we submit that it is the heart and the district court that of the ones that we are writing the policy language not spandex else they're the ones that are attempting to remove the commas from the policy that they inserted and again to this day offered no justification or reason as to why and inserted the comments in the st place there's nothing on the record to indicate why the hard for it would have did we submit that a not another reasonable way to look at it and give no not out of not automatically necessarily on it but in this case it certainly does because the the the as as discussed in my brief the the language is so unusual and so strange in the context of inch of insurance lot especially new york insurance contravenes as as a district court even noted it contra to contravene some basic tenants of new york insurance law so we maintain that an insured and reasonable business person from the pool may be familiar who should be familiar with some of these basic tenants which have been in existence for a very long time it would be reasonable for them as an ordinary business person to apply the excepted wills and grammar and interpret it in the way that we suggest and and as i was saying if you if you consider descriptive as one of the ways in which coverage is provided and especially giving meaning to the to the to the to the times when not simply not disregarding it and in this case and this particular case the underlying advertising no because no your honor the definition of advertising injury and the very same endorsement that it which precedes the exclusion requires advertising requires that the that the infringement be relate to your advertising and you have still all the causation requirements that come into play there so our reading does not read that out something the exception to the exclusion does not change the definition of advertising injury that applies in the endorsement are there any cases you can point to that supports the idea that th that they cite don't don't don't even deal with commas whatsoever the other case that i would like to point out your honor is a new york there's a new york case marron versus constitutional agreement that was being interpreted and the court absolutely considered and found that the clause that was included within the commas was not restrictive so so we're relying on that exception at issue in this case provides a very narrow gets back to the ip exclusion question here is the scope of the coverage give back in the advertising exception and the answer to that question is in plain text it's page one hundred and eighty one of the joint appendix just a few lines of plain text and as your owners know it says clearly that the ip exclusion and i'm quoting now does not apply if the only allegation in the claim or suit involving any intellectual property rights is limited to infringement in your advertising or on your website of copyright that doesn't describe the rx action against bendix house that cases full of garden variety copyright infringement allegations copying fabric patterns making fabrics with those patterns start and distributing those fabrics it's not only about as a read sites to use the language of the policy it's not limited to ads or websites to use the language  now as you know because spending housecat argue that the words in the advertising exception are ambiguous they have this to common argument which they describe this as an old rule of grammar but we're under new york last year and i want to focus on that because new york courts have repeatedly helped that the words of an insurance policy or of any contract are read in light of common speech that's the phrase from the van check cashing case from this court a few years ago quoting a new york court of appeals decision from one of the earlier and and there's no ambiguity in the words here only limited to infringement in your advertisement or on your website of copyright spending has also argued that hartford should provide coverage because they speculate that maybe someday the allegations could change radically so that rex was claiming only copyright infringement in an ad where on a website the district court properly rejected their invitation to decide whether there would be coverage in that imaginary hypothetical future because coverage is assessed on the basis of the record in the present case we look at the record as it is now where do we speculate about what it could be in the future and in the cases like field stand what's happening is they're actually there are potentially covered claims and insurers are saying well we don't think that those are those are legitimate and they're well this is it would be excluded and we're assessing the factual possibility or the exclusion would apply and we're assessing the factual possibility what happens it transforms as a factual matter and all these other claims drop out right and i would say your honor there are two choices that would be available to this court both of which would would look berman to the st would be to say well we're going to apply the field certain standard and there is no reasonable possibility here because it's just pure speculation having nothing to do with the underlying record the other is to say no we're really outside a field because this is not a case where we have actually potentially covered claims that the insurers is asserting or spurious and we have to analyze as to whether there is any reasonable possibility this is a case where right now there simply are no covered claims full stop so we're not in the field in box we're just in the no coverage conclusion and that's all we need to do i think the simpler and better course is the latter one but this court certainly could take the field and approach said the grammar can't create ambiguity so unless you think the text is already ambiguous then it doesn't matter what the commas where the commas are here under new york law but i would say the commas do what they do in the th amendment as we pointed out in our briefs the commas are just suggesting to the reader of the clause where to pause people use commas like that all the time now the cases that they're citing from outside of new york from the d c circuit from massachusetts are cases that are citing some style manuals that chicago manual of style that sort of thing and as you know as a matter of language style manuals are manuals to tell people how the writers of the style manuals think they ought to write what's a better way of writing we have all been told me should read more strunk and white it doesn't describe how people actually write it doesn't describe what people mean when they write in the way that they actually do and the purpose of contract law under new york is to figure out what's the common meaning the common meaning that's the fam check each cash case and the common meanings just like it was with the framers of the twenty  in their view is that commas on either end operators generally pinky resort make the words disappear entirely and they make not just those words disappear but they make the word only disappear and they make the word embedded just this is plain text the grammar doesn't create  to grammar is consistent with the ordinary usage of ordinary people framers of and then the constitution itself there's no reason for this court to pause on the grammar arguments made by the other side if there are no further questions a rest thank you thank you mr sharon rip out all thank you you're honest i would like to address the reasonable possibility argument right now the law in new york is that the duty to defend is conditioned on the possibility of this case is very unique in that the district court dismissed it without prejudice therefore the district court judge in our opinion recognized the possibility that the that that the case could be transformed such that the only allegations remaining ensued were allegations that possibly created coverage let's say for the moment that we agreed with your adversaries interpretation of the exclusion and and believe that it applied in this case at present he argues that the proper determination then is not even to apply fields and just say there's no new coverage why isn't that correct and in is it clear that those who would apply in this context in some other test might be appropriate in the context where you make a determination that is no coverage now that there might be a conceivable coverage in the ensure and ensure must consider whatever whatever is in the complaint and also whatever other information is provided to it that may indicate a basis for coverage that that's  is the insurer has an obligation to consider all of the facts that are presented to it and in this case i would say that what makes this case unique and different from all the other cases that they cite in their brief is that the plaintiff in the this case is much more similar or analogy just to bridge metal and other cases that considered other exclusions where the the plaintiffs in the underlying case asserted facts that wo trigger the exclusion but it was uncertain as to what was going to happen in the future and bridge meddle in other cases the court said someone is it is possible in that case it was a trademark case so long as it's possible for the insured to be liable for non willful infringement which would be covered we don't care we're not going to consider what the plaintiff is alleging all the all the acts of intentionality that the plaintiff is alleging one not why not in a place to judge the merits of those claims and i think the same is true here at district court clearly are aired in our in our opinion by judging whether or not the  left is that the typing so it's very reasonable it's very it's very real it's certainly reasonably possible and the standard is reasonably possible no matter how remote so we submit under the under that under that coverage at the end of this case as happens and in most cases at the end of the case so now a geisha is fall by the wayside as it was a dismissed a withdrawal or whatever and there's a huge body of case law that says that  clearly said in the end this endorsement that this indorsement limits the duty to defend other pa other insurers do that they didn't do that the the the there's no reason for an insured or even an insurance lawyer to to look at this and assume that this is primarily directed at the duty to defend and that coverage and indemnification they want there are many cases and they cite them in the brief where the issue of allegations surviving allegations comes into play with respect to coverage and indemnification and it is reasonable for an insurer to say i don't want to have to cover a claim one when we don't know what the cause was or it's not the time