please the court i'm david rossmiller here on behalf of campbell global in bascom southern my partner elisa boyd is here as well try to keep your voice up would you please yes i'm sorry your honor yes say i will there matter if not all of it and what we have here is what we're asking the court to do is that the district court across summary judgment motions found for the insurers and denied our motion for summary judgment we are asking that the court reverse the district court on its grant of summary judgment to the insurers and grant summary judgment to us campbell and bascomb for all the damages in the underlying arbitration award though what the district court the there's two main assignments of error that really explain everything here but the one the st one is that the district court that's what he said but why was he wrong about that because it is that is a very good question let me just answer it this way this lease began in one thousand nine hundred and sixty eight the lease says nothing about bit about this except that it should be returned in good condition but what is good condition the arbitration award cited that there were violations of quote unquote best management practices and good management practices those are defined nowhere in the least they're not even in the least at all and there's a very good reason why those standards weren't mentioned best management practices is not mentioned in the least ask this mr are those good practices a good management standards incorporated in statutes of the state that spell out that a violation constitutes a tortious injury to the person whether it's a criminal violation put that to one side this is not a criminal case yet we are in the legislation which you rely is a matter of guidelines of good practices made to be a mandatory duty by a member of the society as to the property owner well it's a duty that's a community industry standard promulgated by the era of the alabama forestry commission and that's why your honor that is not mentioned in the is there a statute in alabama that adopts the guidelines as be mandatory duties for civil property liability they the there is a statute that created the alabama forestry commission which guide small the forest i'll try once again can you cite me a statute which incorporates the guidelines as a mandatory duty not something in tort and that is not well ok thank you no second is there anything which indicates that the guidelines are incorporated in the contract are they corporate it in the contract those are constant side the contract is not altered after the contract to sun well yes because and we know that because the contract the original lease for with american can the predecessor to two to bascom was in one thousand and sixty eight the alabama forestry commission which tells us what best management practices are was not created until court still looked at this and thought all of the obligations arose out of breach of contract not tort and it seems to me you're much stronger argument that i'm really puzzling over is that the arbitrator not looking at the lease the district was looking at the arbitration agreement and direct ruling on the negligence claim unless unless arbitrators intended to resolve it the same way with the with the breach of contract at the i think it would just be left dangling well that's an interesting observation your honor because they said we are dismissing these intentional tort claims wantonness nuisance trespass and so forth and as to the remaining claims of negligence and breach of contract we find this falls right they said right to do that just kind of just interrupt may did they ever dismiss the negligence claim they did not so to sue to reach the district court's conclusion what we'd have to say is that these arbitrators which included a judge and professional foresters just in the span of five pages it's only a six about doesn't sound accidental or negligent it's years and years of this is my these are my words paraphrasing to be sure but it's ninety years of mismanagement many years of intentional decisions  made and how the farm was was or force was managed and so what do we do about that well what we do about that is we look at the decisions like from the organ supreme court like kissel one hundred and seventy two this is been recognized for a long time in oregon law to have and the old crest cases well to have these two for something to be intentional in a legally significant way you have to actually intend the result not just do an intentional act many of these construction defect claims obviously that the person who nailed up then put in correct number of nails in the siding intended to do that but it was negligent they misinterpreted it was but in this case the arbitrator's don't help you there either i don't think because they that i mean just to just in terms of i'm getting back to my initial question which is which is that i think the disquiet looked at this course of conduct not as accidental or negligence but more egregious and certainly very protective very long term lease right well there was a disagreement about we know that they that they spoke the grey family and and campbell in bascom but there was a disagreement over what actually the best management practices are good management practices constituted now the arbitrator said actually they weren't awarded all the damages the grace saw so it was ok but for is it four years earlier gray's i think it's four years earlier gave him a letter indicating you know you have a duty in four years to return the property in good condition and here's all the reasons we think it's not in good condition and i think those were not remedied well the testimony is that they did go back mr roark and others did go back and they did think they were removing some of the things and they thought that other things were in were consistent with good management practices they lost the arbitrators disagreed with them well people lose lawsuits all the time we see that i mean assurance lawyer and yes there's negligence that happens all the time but we're not going to revisit the arbitrator's findings all of the arbiters of damages of us from from contract you said there's a nd issue you wanted to raise certainly with that one and i would like to review the reserve a few minutes here if i could for rebuttal this one is much more straightforward and easier because it just deals with a little bit of language and an absolutely crystal clear decision from the oregon court of appeals and that is this issue of there's nine hundred and seven thousand dollars of attorneys fees that were awarded between the grace to the grace pursuant to the lease in the arbitration and there is a the pre the insurers have admitted that all their policies are potentially at risk defending taxed against the insured it does not say why they're defending you or that there has to be what type of liability has to be found or that there's any any other condition except that if they defend you we will pay costs tax against you and the hunter's rich case is exactly the same thing the general contractor white suing the sub contractor w this case unlike hunters should involved a duty to return the current sorry premises in good condition on a specific date so i'm thinking of this is sort of the breach occurred you know at midnight on the day that lease expired on that date right and yet there are years and years and years of insurance policies i'm trying to figure out how those are implicated because if you look at the phone court decision from the oregon supreme court every policy is implicated where property damage was how that policy year so we don't have anything in the arbitrator's award that indicates to us that this property damage was accumulating over time or over what time it would have been accumulating because you have a line in the sand in these policies arguably between two thousand and eight and pretty two thousand and eight there what do we do about that they bond in testimony from the arbitration which was submitted into the record with our peers did make a finding about this well that is what they considered to make the award there's a lot of things they didn't say but they didn't list every single instance of when it occurred ok so just walk me through then your theory about why i don't need to be concerned about the but the lease expiring on a particular day unlike the other case because as the insurers have admitted in their letter of doing st two thousand and sixteen it is not and there are many of them different defects about when they are rows when they occurred they would from the testimony they could only go from the testimony that they had in the arbitration which said that this we're talking about fifty six dollars stands of trees planted from two thousand and one to two thousand and thirteen that's the testimony they heard well so that also it heard testimony i don't again i don't mean to argue with you but they also heard testimony presumably from your witnesses that there wasn't any damage at all i don't know what they found nobody said that there wasn't that these conditions didn't exist there was a disagreement about whether they constituted a violation of best management practices and whether they constituted toward there was testimony i think about especially about the roads and the erosion that that was perhaps exacerbated in the last few years when there wasn't sufficient supervision over contractors working in the area wasn't there maybe in testimony on that but i'll tell you what that felt in court says that it's not our burden to specify exactly when all the damage happened if the damages there's testimony and evidence showing which we've submitted into the record both in the trial court and here that the damage was a continuing loss a progressive loss it is the insurers burden not ours to segregate that into different up that you're now going your might be on the briefing argument that we really have and this court and and it's this is something that the district court didn't know it and he actually in fact we've we've breached their contractual duty to return these forest lands in good condition as a result they were assessed damages by the arbitration panel campbell and bascomb now seek to have their insurers assume financial responsibility for the deliberate actions that campbell and bascomb took in mismanaging this forest land these policies don't cover this type of liability and accordingly the district court's judgment finding no coverage should be affirmed now as the court has seen there are many issues that the plaintiffs have to prevail on before they get to coverage the district court only decided one issue and that's we've talked about a little bit this morning and that's the question of what did the arbitrators decide did they'd find liability based soley on breach of contract or did they also find liability based yeah so what do they do there the key paragraph they say very simply these parties campbell and vast might have to decide how i want to refer to them the insurers the plaintiffs but in any event the plaintiffs lease this property they had a can obligation to return it in good condition that's right out of the contract they failed to return it in good condition that's a finding a breach and the failure to do so caused damage period that's it paragraph six makes no reference to any duties independent from the contract any obligations independent from the contract or lindo yes your honor about that is it your theory they didn't rule i think that's right or they they didn't have to and they didn't they didn't rule on the the tort theory there's nothing in there to indicate that they ruled on it one way or another now perhaps if it had mattered to the property owners they could have gone back and said well arbitration panel we have a gap here would you fill that in they didn't so what we have is what we have and then best management practices are independent tort duty whether that's true or not is they could also be a definition of what constitutes a good cause under the written contract well i didn't find that persuasive but i'm pretty concerned about th say it's clear that they ruled against it because it doesn't that doesn't appear nor is it clear that they're ruled in favor of it what's apparent is that they didn't rule on it they found it sufficient to deal with the breach of contract theory and that's what they ruled on well then what do we do with the district court's ruling and the coverage issue what he decided is that they ruled soley on contract and even you're not arguing that well i we're it's a fairly i'm not arguing that if we read the district court's decision as they ruled in favor on contract and against on negligence and i don't think that's what the district court ruled i think what the district court ruled is that the arbitration award made one finding of liability and it was a breach of contract finding and the judge didn't get into frankly the other issue of what happened to the negligence claim i don't it already made pretty clear as i said there are there are a lot of issues here that the plaintiffs have to prevail on to get coverage the district court only got to one of them so there is an issue there's a question about what this court does already identified there is a very simple dispositive issue that resolves all the coverage questions and which this court can and should resolve and that is the question of whether what we have here is our damages awarded by virtue of an accident the threshold question for coverage is whether there is an occurrence occurrence is defined as an accident but it also has a prolonged exposure a condition but it including accident like forehead slapping hoops it's not that it's a different definition here right what do we do about that the prolonged exposure language you know what i'm referring to i  think it's it's an occurrence including a prolonged exposure to so it still has to be an accidental vent including from long exposure so i think that defines that the fine accident certainly more broadly and in an injured friendly way than we see in other contracts but there's still you have to start out with the question was was the did the did the insured engage in an act so certain to cause the particular kind of harm that occurred that the court will say the insured intended the harm if that's true it's not an accident and what here did these insureds do that was accidental they knew they chose because it saved the money to plant these st generation seedlings rather than nd generation seedlings they chose to abandon road maintenance they chose to abandon repairing skid trails they chose to plant the trees the way they did and i can i forgive me for interrupting but some of the planting decisions i'm putting in a different category because opposing counsel's argument is that in  is that intentional consequences can still be accidental if the if the if the you know results are forseeable or or unexpected and so planting crops seems to me to be really different than the problems with the scene it was just as inevitable and that's a word to sort of keep coming back to it was just as inevitable these trees were going to grow the way they grew because of the way they were planted right but it seems to me  that that there's a real there's room for maybe for disagreement about what is or is not a sound practice or as the best practice for purposes of making this good condition  finding maybe even for disagreement there about those kinds of planting decisions and it seems to me the roshan can roshon control on the road man it's really quite different i don't share with where there is room for dispute about those other things ok i  understand your point i don't least way i understand the records i don't understand that i mean i know the position they took down in alabama and we did nothing wrong it was all great arbitrators plainly vehemently disagreed that with that and the traders made a bad faith when they say did they did it which you know really goes to this issue we're talking about right now is you know is this is this  situation where you know the trees were damaged or the roads were damaged because you know they accidentally applied the wrong fertilizer and it killed trees or they set a fire and it burnt down some trees it's not that kind of thing at all these were deliberate choices done for the express purpose to cut corners and get by as cheaply as possible that's what you know that's what the arbitrators found and that's what happened and that's not accidental but you know and which of these categories of damages or property damage within the meaning of the policy and which are not and so that's you know why frankly i stand here and say you know if i can persuade you that there is no coverage because there's no occurrence then i think you know the course is to remain and it back to the district court to address these i don't know how many issues there are i mean for example we believe there's three exclusions that apply to quite didn't reach the correct can elaborate on that are you asking us to remind us using a us means to remove i'm not asking you to remain and except in this in this circumstance and the district court reached the one issue if you disagree with the just record on that issue then i say alternatively i got you there's no occurrence because i didn't ask you the question then the best management practices are they incorporated into the terms of quote good the way i understand the best management practices in again the record is not as robust as it might be on a lot of these issues which doesn't fall on the insurers it falls on the party attempting to establish coverage but the way i understand the best management practices is that it informs the decision about what are good conditions it's a reference point it's sort of like this is evidence of what would be good we're going back to schoo one here there wasn't a tort finding based on on the violation of an independent duty but instead a finding of a breach of contract and evidence of the breach was you folks are doing things that haven't been done in years you're doing things you don't even do on your own property but you're that's a persuasive argument i think that's a persuasive argument that those forests standards really went to what is or is not good condition as a matter of contract  but i don't know where you've landed on this negligence claim i think you've agreed that it was an expressway ruled on by the arbitrator's they didn't dismiss at least i agree on i think you're going to are you circling back i'm not sure you heard the end answer to judge by his question are you asking us to remain on the meat it didn't matter in the arbitrator's i get that yeah because they'd found what they found regarding liability it would have been belt  suspenders but it matters the hot and the coverage dispute so what are you asking us to do about this well on that point there we can't go back and relive again the arbitration date it was arbitrary was decided they found what they found and judge judge mosman was correct there's one basis for liability it was breach of contract and and parties agree under oregon law breach of contract does not give rise to insurance coverage and i think questions i'll answer those otherwise thank you very much you have two minutes ok thank you your honor it's important that i get this across about the attorney fees provision in the supplementary payments it is not despite what the insurers said it is not a provision that is dependent on the type of award that is given nor is it dependent on anything else except did the insure defend and were costs taxed in the sense that the hunter's rich court has found where they c'est and they were x tax costs to me when i was drunk cases to not include attorneys fees and all for the defense and we know the insurers said in their letter their reservation rights letters during the lawsuit that they were defending under all policies including the preacher when you wait so therefore the nine hundred and seven thousand dollars is totally separate from this from this question that we that you've been talking about with counsel so what about their other argument which is that they're treating it like a statutory and then they're saying that this really just clarified the post two thousand and eight change in policy really clarified what we what we intended all along we never did cover what about that oregon has the objective theory of contracts undisclosed intent or something that you say six years from now about what you meant now does not affect the benefit of the bargain that you and i enter into at this moment that's what i would say about that and there is no warrant under oregon law for that whatsoever so could i answer any other question one thing if i could just point out something i could agree with the insurers on two things they said on page four of their answering brief they said the best statement of the damages that were awarded  statement of what was the what the greys were asking for is in the arbitration complaint and it listed all the complaints they had the trees were right the roads were washed out the boundary lines were wrong creeks had sediment those are in fact the things that the arbitrators awarded on page four of the answering brief they said it's the best statement of what the greys are asking for in negligence their negligence claim that is what the award was from the arbitrators they also said going to pass through time rasmussen i there's one thing i must say here because because council just said that there's no way that you can interpret this to to to say that there is negligence that was awarded i would agree with the insurers what they said before they just said that when they said in there was once seventy six in their response to campbell's motion for summary judgment i quote the arbitration expressly found damages were all waiting for both t