thirteen thirty three eighty five john stafford and all versus jewelers mutual insurance company scuse me oral argument not the fifteen minutes three minutes for a bottle please i have three major points to discuss with this court today the first point is that staffords claim is covered by the insurance policy the second point is that staffords bath bad faith claims are not barred by the statue of limitations and the third point is that staffords claims are not barred by rush to the cottage if we disagree with you on the first we don't need to get to the second and third site correct  that is correct your honor thank you would you like to discuss that that all your argument is up to you ok would it benefit the court to hear a recitation of the players and what they were fighting about how well  know the facts of the case so you don't have to go back over and over bad unless you think you need to to embellish your legal argument well if you know the facts of the case and i'll just jump right into an argument your honour's my first contention is that the claim was covered by the insurance policy the insurance policy covered personal injury personal injury was defined in part as oral or written publication of material that disparag person's or an organization's goods products or services that's got to be on the part of the defendant in the underlying case that's got to be on the part of anybody quite frankly your honor so it could be doesn't make sense to be on the part of the plaintiff i mean julius klein so the allegations in that if you have one of these insurance that covers liability for certain kinds of activity usually it's liability for certain kinds of activity on the part of the covered person right i'm sorry arson not on the person who's suing the put the covered person right yes i misunderstood your question so the law the coverage was for any statements that the insured stafford would make that york allege that stafford mason made false statements that julius klein or brings lost or stole the diamond those false statements are publications that disparaged the brinks services and disparage the jury source services and that's why they're covered under the policy that isn't wasn't the crux of the suit all right that well why they were suing certainly the crackling because of fraud right the crux of the suit was that john stafford was doing julius  for the loss of the diamond for losing or stealing the diamond the crux of the counter claim was the statements that were made by john stafford that i'm not following you have to explain a little bit maybe you do need some facts ok i don't understand how but i thought the counter claim was that he that it was all fraudulent ok so that's what i thought as well even though the policy in my cover disparagement and that kind of thing what was being sued for was for are isn't that the case well number one your honor as i would point out that there was no title to the counterclaim the counter claim based on what was described an encounter claimed was was an allegation of and certainly it could be i mean what's your position my position is that under the insurance policy the insurance covered any type of claim whether it be fraud whether it be any other cause of action that encompassed allegations of false misrepresentations on behalf on behalf of john stafford that disparaged a person's organizations or services and that's why it was covered under the insurance  statue of limitations accrued in feb twenty seventh that is the date that the insurance company denied stafford's claim they sent a letter the letter said counsel on your behalf agree not to contest the insurance company's cover its position as stated in that september seventeenth two thousand and seven letter and confirmed that stafford does not intend to pursue its tender defense and in that's not what the agreement was between the parties during the lawsuit the parties agreed john stafford of the insurance company agreed that stafford could contest coverage as at a later date there is a written agreement it's confirmed by the insurance compan attorney that's very big on this entire honors that stafford could can test coverage when he did do that in february of two thousand and eleven the insurance company denied to claim alleging that he waived right that was a false hood that was a misrepresentation and that was bad faith so the stache limitations occurred in february crude in february twentieth eleven the lawsuit was filed in january twentieth twelve that was timely the last point that i'd like to make is that rush judicata does not bar stafford's claims i think there was some dispute between the parties and with the court us to either ohio law fresh to the place or federal law fresh to the cotton applies we submit that ohio applies but either way we don't think the claims are barred by russia caught up the reason is because during the underlying litigation which ended in two thousand and nine there was morning your honor my name's aaron moore and representing jeweler's mutual insurance company in this case i think it is quite plain from both counterclaim allegations and from the extended and vigorous litigation in the previous lawsuit that the counter claim was one for fraud and for fraud that's very important in this case because the policy that was issued by jewelers mutual has a very specific insuring agreement and it specifically defined personal injury coverage definition the policy promises to pay all sums and insured becomes legally obligated to pay as damages due to quote personal injury close quote or advertising injury to which this insurance applies is the part that has disparate seems to me your opposing counsel least orally are use only that there's disparagement does that fall under one of those disparagement is one of the offenses that is included in the definition of personal injury in the policy and as you know especially like the dress that particular argument which was the one she focused on that the way i address that is that fraud is not included in the it is not disparagement because that's not what's pled in the counter claim and in order to determine the allegation of fraud also an allegation of disparagement i'm not disagreeing with i'm trying to get the answer because the fraud that's alleged is the false representation  coverage and analysis has to proceed from and that's the basis that the coverage analysis didn't proceed from in two thousand and seven in two thousand and ten in two thousand and eleven logical to me i just wonder about you know just purely the word of disparagement if you didn't have to have a third party almost any fraud claim would also be a disparagement that is true your honor in disparagement is really a derivative of a defamation claim that they have very similar elements they have very similar and alice sees and i think that the district court did correctly analyze that in this case and recognized that there were no unprivileged statements to third parties that's the crux of both of those claims and so what we're dealing with it alleged lies by the plaintiff to the defendant the defendant filed a counterclaim based upon that and the images that resulted to the defendant from those misrepresentation s that's a fraud claim fraud is not one of the enumerated offenses that is included in the definition of personal injury and as a consequence is not covered by the jeweller's policy an additional reason why it should not be covered under any policy is the fact that frauds an intentional tort there's a public policy against insuring for intentional torts so that in conjunction with the plain language of both the counter claim and the policy support the lack of coverage which was the correct finding in this case and i think the court also recognized as it did the district court below because this is a denial of defense allegation that underlies the bad faith claim in this case as well if there is no coverage there can be no bad faith but moving on to address the bad faith issues raised by the palin in this case the bad faith is precluded both by the statute of limitations and by judicata in this matter number one the statue of limitations which is four years begins running at the time that the insurance advised there is no coverage that letter was sent to the insured on september seventeenth of two thousand and seven so he knew from september of two thousand and seven that the insurance company said there's no coverage there's no duty to defend this counter claim approximately two months later after the course of several discussions between counsel for jewelers coverage counsel and the counsel for mr stafford there is an agreement that mr stafford is going to withdraw his tender of the defense to the company withdraw it there is a statement that says who we're going to we are not going to contest coverage at this time but the next sentence says we're not pursuing this tender withdrew the tender completely once the tenders withdrawn there is no obligations on the part of the insurance company even if one were to view the repeated requests later on as an additional request to look at this maybe even a tender it does not read trigger that statute of limitations otherwise this special it would be meaningless and contrary to some of the arguments or race at least in the brief this was this was not a affirmative promise not to affirmative promise by jewellers mutual to do anything the letter agreement basically confirms mr stafford this is what you're telling us you're telling us that you're not pursuing these claims you're withdrawing your tender and whatever claims there were other claims or existing against jewellers mutual at the time in the previous litigation under the first party portion of the policy this isn't to the prejudice of those claims will go ahead we'll finish that litigation but we're not going to do anything with this that was the sum and substance and because there was ongoing litigation at that time mr stafford had the option and could and should have litigated any issues he thought he had with jeweler's mutual then and there he knew by that time that they were they were not going to cover the defense or any indemnity for the fraud counterclaim he knew whatever analysis had been put into it so if he thought that it was not properly done at that point in time he had the opportunity to contest in a bad faith and he didn't and he didn't after the after the case was over and he didn't within the statute of limitations for bad faith it's simply been resolved just a couple points opposing counsel has argued that the fact that the courts and perhaps the parties construed the counterclaim to be one for fraud in the underlying litigation and that perk ludes coverage that is not true if you look at the policy it's often spaced coverage your honour's often space coverage focuses on the facts included in the claim and not on the particular cause of action in this case the facts in the counterclaim i'm not sure that their argument pardon me for interrupting i know that's ok or that their argument is that if you allege fraud you can't have alleged anything else i think the argument is that there is no allegation of anything else party otherwise it's not disparagement i would i think there's a couple things to say here number one there is a tort of disparagement i don't know if that's recognized honorable ohio law but whether it is or isn't the policy does say it has to be a publication and we would argue that there was there is ample evidence of the record of the publication and john stafford not only made these statements to it would say that any fraud allegation of because it deals with lying to the person who suing a disparagement i would agree with that and it's already fraud so it covers fraud it just doesn't say so yes yes thank you absolutely the strange reading of well it's i mean the thing is the imp the insurance policy all right thank you