against its insured unless it's clear from the face of the underlying complaint if the allegations fail to state facts which brings me cases within or potentially within the policies covered your honor it's our position that  far from clear that the allegations of the underlying complaint did not bring this case at least potentially within the coverage of the complaint and if we submit that's the case jarana then three things are true number was reached its duty to defending tax in the underlying krohn action number two because it provided no defense did not offer to defend subject to reservation rinds and did not  or disease it goes on to state that the company shall defend against any such actions now with regard to claims that fall within the realm of bodily injury by disease there are certain time constraints those time constraints do not apply to claims that falls in the realm bodily injury by accident we've looked at the policy language we now turn to the complaint  of course under illinois law in order to handle a potentially cover claim such that there's a duty to defend we don't have to show that every claim in this thirty six dollars page complaint is potentially covered we just have to show that something sagacious something some part is potentially covered and we've done that the basis for that position you're ours is not simply the allegations in the apple shortly after the time when there anything that is a sudden violent event that causes botley harm it sounds to me like bodily injury by accident in addition your honour's i point court said this is injury by accident so in other words even when it didn't happen in an instant it could still be by accident under the law  you by accident so it's not popping into the bay accent but yes it is and the statement that the contraction of disease is not an accident within the meaning of the word accident actually isn't true because they go on to state that disease can be bodily injury by accident well obviously that disease has to be contracted so they said the contraction of disease is not an we're taking just those diseases that are diseases that fall within probably three by accident i've been a college lawyer for more than thirty years i have trouble parsing this language but the standard is what kind of coverage lawyer clear and that's another basis for our position that the claim was potentially coming because there's no clear distinction between bottling by accident and  pennsylvania and louisiana was the state that got the lead here because the pennsylvania case which doesn't come from the pennsylvania supreme court by the way comes from the rd circuit interpreted what they honor says to the extent that we're looking at all from outside the state of illinois comprehensive general liability policies it said nothing about the employer's liability coverage that is at stake here one year later in two thousand and eleven the insurance company this tender is under these workers comp and employers liability policies too and that's plainly showed in the record and it's acknowledged that the e mail by which that statement was ma very clear that when jurors company causes an insured to i'm necessarily have to take steps to vindicate its contract rights when an insurance company delays and as neatly on one page so the notion that somehow impacts weight in this issue because it is arguing it nap in a slightly different manner than an architect below is of no consequence decision that we think should be a fruit in all respects and i'm going to discuss the two the two grounds on which judge matsch issued summary judgment those grounds were based upon language of policy the language of the policy because you don't get to go very far would you don't get to rely on those provisions because you were stopped because you didn't defend the underlying criminal action nor did you  counsel in the underlying proceedings before judge matsch said those policies provisions any policy provisions are immaterial and false issues because i don't need to discuss that and i won't discuss  proceedings is the question of whether our witness is stopped because he didn't defend upon tender of the complaint nor did it file a declaratory judgment action and there were i advocated the case for five years there were at least seven or eight opportunities when apex in pleadings could have raised the issue of bodily injury by accident that the crone complaint alleged filing to the accident they did not in the complaint mr goldstein is correct that they that they argued that they claimed that our code a duty to defend me based upon policy of course they claimed that it's an insurance policy these are workers comp employers liability policies they so to say that the court erred in its application of the provisions of the policy is not only unfair or who have never had an opportunity to meaningfully respond to that argument in the trial court but it's not just because  let me let me explain to you that when we were before judge my gann had oral argument and times argument i stated to the court that the parties do not dispute that the only dispute that we were talking about bodily injury by disease in fact judge much included that in his decision in the underlying summary judgment decision and there was good reason for that because the allegations of the complaint pl conditions all mr crone was doing for his stint for that matter was pleading that he suffered all the conditions in the contraction of disease that comes with can't remember these are workers comp where's my ability policies and they have to that question they say that for purposes of an occupational disease such as what was played here by mr crone's estate where disease is contracted through exposure there's no dispute that mr crone the major is that he's suffering exposure to a specimen of fighters that got him sick suffering injurious conditions an injury which is what happens when you a six or a tender at some later point but it certainly shouldn't then about ninety two policy that had expired fourteen years after before the last state of exposure and at least footed those arguments but even if it's considered it fails and because it distorts the policy language it ignores illinois rules of construction because the pex reading of the an accident happens on the job it's a discrete event in time place and cause this is a worker's comp employer's liability policy after all so it deals with those types of workplace accidents and then the contraction of disease via that exposure of the policy answers that question to you and says it's not by accident it's badly injured by disease and because contraction of disease which is exactly what mr cro pleading the disease process he's pleading he was exposed to fires he's pleading that he had he got sick injuries conditions and then he's pleading that he contracted with that feel you know it's the contraction the from employers heavily workers come since has entirely different definitions of the word bodily injury battling injury under is comprehensive general liability policy is defined as baali injury sickness and disease and because of that brought up by that's below is a style not i'm reading from the transcript of the argument below and this is what mr knapp who was counsel for apex said so what we have here is we have a a mere possibility of coverage triggers the duty to defend and the case lost as all doubts regarding coverage must be resolved in favor of coverage in favor of the insured lawyer one cannot be clear on these defense they would not have sacrificed their ability to argue that it wasn't actually covered no we would disagree with them but my my point is that when they talk about these scenarios that are