in december of two thousand and sixteen and there really wasn't any open testimony in the searing it was just pleading once every responses and for an affidavit year they cancelled the policy it was seven to be cancelled see it in basically in contravention and contradict and the reason contradicted the answers that were given by serenity so a on on page sixty two of the record the st page of the insurance application slash binder says it knows some contractors will be covered under this schedule and that's the schedule under another schedul number in the heart for system nd the answers that serenity sless says provided to hartford demonstrated unequivocally that the injury to mister sir scrim a fact that the court found there were cries of misrepresentations as to the coverage to get the coverage but the actual section that the  entire liability of my clients because it would just be the employees that were listed in the worker's comp case and rd the doctrine of normal loss  would exclude any installation work from coverage because as i'm sure you'll hear and it's in the record my client signed a contract to install lights with built case for prior to getting insurance policy so they always so a believe that we have a situation where mister sas was in the course of his employ me on a sales call when he slipped the phone suffered the injury and you have an in april temporary benefits for pain i believe for a while then they were told then that then the insurance policy was cancelled then an audit letter went out after it was cancelled then the plaintiff filed the rescission cl materially affecting his innocence creates an exception that in my view for swallowers that section all because it presents the possibility the very real possibility that seem never get to the question of fact the materiality of the wrist and me could be presented with a situation where it could be a within one hundred percent of the time for the insurance companies and motion for summary judgment in these type of matters and i don't think that was the legislatures and so in some i don't think but i don't think my position is that hard for was never at risk voided and the bases of the misrepresentation that is either intentional or material you agree that serenity denied it was engaged in any installation service of a repair when it applied for the coverage i don't think you know i'm asking you so do you you admit then that they in fact were engaged when they applied for the coverage of the country i ok so i'm confused the record makes it seems to me the record makes it clear and then page ten of your brief that serenity was engaged in contract to install for installation services since they were already installing l e d li donahue i think the gist of your argument was that this issue in this case is about whether the defendant is entitled to coverage under the cap law or under the plaintiff's workers policy but the issue hartford sued for rescissions isn't the question of whether they are entitled to rescind the policy such that it was not effective at the time of mister stephens accident on the basis of alleged misrepresentations isn't that really the issue here manager of the car lot had stated that at that time we before the accident in the month before the accident serenity had entered into a contract for installation correct so how is it not misrepresentation made to the insurance company and the nature of serious business but i don't i don't believe there's actual intent to deceive and then there's no material effect on the risk if you tell if you represent to insurance company you're in the process of really supplying  lights and you're not doing any installation work where somebody could fall or get hurt and then that the material misrepresentation to the standards of the material misrepresentation thinking it's a misrepresentation made w the insurance carrier why wouldn't that qualify if you tell somebody that you don't own any installation and yet you have a contract for installation with the other business why would there be intent to deceive there because it's simply not something that would be covered if we say that no we don't do it and then after the fact we're doing it it's just it's not covered and knew there never under any fall while he was on the course of the one is the sales person not installing money it's not a claim for an injury for installation it's a slip and fall during the course of this employment on a sales call regarding the nature of our decision claims and the reason why the trial judge it there rescinded the policy i would point out a couple of  which are contradicted that a by the actual knowledge of sas at the time he made those misrepresentations as the trial court ready found that clearly drop shipment of elite the light bulbs that the employees to be covered were clerical and sales and on the other hand we have the actual actual business was the installation and the repair of light fixtures and that car dealerships as everyone knows those light fixtures are fifteen or twenty feet in the air we also have the representation the ladder and the lifts were not used in the business whereas we know that they actually were because we even have a bid for work to bilk a which includes a line item for lifts plus the fact for the serenity l installers to reach the fixtures they had to get up there some way and ladders and lifts would be as the alternatives so the policy was issued to  material as were the risks being a cover the intriguing aspect of the argument and that still trying to rattle this one round to see if i think get it to come out in a meaningful in our a brief it we sets forth the fact that the serenity and sas holy miss apprehend the nature of workers compensation insurance the statute says that the policies will be worker's compensation obligations and as the court is well aware those obligations are to cover any accidental injury which arises out of and in the course of the e obtained a worker's compensation policy which if christopher sas sustained his injuries by pitching off a ladder while installing lights a twenty foot level and broke every bone in his body would have been covered under that policy that's the reason for there were a says it we don't have a policy that contains for that and we say eat it does not because this is as clear a case of number one misrepresentations which are agreed number two of the policy which is circumstantial mandated because why else would they be making any representation or responding to questions that were asked by the hartford das have the knows that those questions were being asked so that they would understand the business and the rest and determine whether or not the issue of the policy therefore this is as clear cut a case in favor of sage and under section fifteen dollars or under all of its problems as could conceivably be made or present we submit that the trial judge was correct in finding that these were intentional misrepresentation and as this court is well aware  any grounds which are appropriate and therefore for me if the misrepresentations were material either as to the acceptance injury of an employee installing those odd l e d lights on a ball there is no argument that hartford would have to cover it at that policy was in existence notwithstanding any misrepresentations or anything else based on the worker's compensation act or based upon the worker's compensation act if there was no claim of rescission for misrepresentation was no policy and if there was no policy then even if this was not christopher sands let's assume that this was it bob the jones who was up there working on a ladder and day a list and sell  even assuming we agree we made material misrepresentations mister sas employee was that her doing installation work he was merely walking across a parking lot those if it didn't happen as a result of installation work we should be able to still follow them covered so how do you respond to that argument that he fell when he wasn't doing installation work very simply it makes absolutely no difference what he was doing he could have been sitting at his desk there one of the ceiling collapsed the policy doesn't exist because it was procured it by fraud that is the nature of you can't say that well some risks are excluded under this policy because we misrepresented a b c and d but this is a risk each which is not in the line of those that were misrepresented and therefore you have the issue of a policy which covers that risk no risks are covered under a policy that is the and we sent forth the a cases a in our a grace the say it makes no difference assume it's a health insurance policy and you weigh it misrepresents whether you have  risks you're not going to parse that coverage because as here that coverage has to be coextensive it was the employers exposure under the worker's comp act which is for any the record indicates that any installation work was going to be done by sub contractors and that it was in response to the inquiries of verify when my client's asked for up an schedule and the statute for the workers compact definition of employer provides a safe harbor or one an employer who uses some contractors and does not have to provide coverage for those people the risk of you know starting an argument personally with mister miller i think that those three aspects do demonstrate that it's not completely unit and it's not completely courts and so because the legislature set course certain instances where that will does not apply this exception and i'm not suggesting that the exception be applied globally going forward from this day forward i'm saying that in this instance in this case of hartford versus serenity the exceptions apply and i think th and fifty four dollars clearly says that no misrepresentation will of void coverage unless it's made with actual intent to deceive or it materially affects the rest call and with the exclusions that i just mentioned the exceptions together with the known risk doctor and the heart heard was never at jeopardy for an installation claim and this is  contract and cancelled it and given it gave her a reason for cancelling a contract that didn't say anything about misrepresentations it said if it's on page eight hundred and ninety eight i believe for in effect we're canceling your policy because you no longer meet our underwriting guidelines because you are installing installation heights of street and lighting highway and street lighting w when they clearly serenity and that clearly answered that question in a card for his inquiry in the negative in march no we're not doing street lighting installation work and there's a you know thirty feet yes i saw contractors who are excluded from this from this policy from the get go so our position still is there's a genuine issue material factor as to whether the court properly entered summary judgment in this case because the exceptions apply in this case only not globally and the case should go to trial so that we can actually give the court the opportunity to smore the credibility of the  insurance application is your position and if they ask if you're suffering from cancer and you say no it turns out you have diabetes you make a claim later the argument is it doesn't matter that there was a material misrepresentation what i'm saying is is that there is no evidence of actual intent to deceive but how do you characterize the question says is a company doing any installation work at all mister south says no and yet they are and they have a contract how is