sue yes i mean the total amount involved here is twelve hundred dollars the underlying cases were alleging among other things the failure to return twelve hundred dollars ye the cases were bitterly disputed and there were allegations of wrongdoing from one end of the other and the apartment or small business was an important reputation in the community and they fought their cases and fought them literally and i was defense counsel a part of defense counsel for the apartment underlying actions as well and they settled it or did it was a drug they settled both cases or are now the briefing in this case focuses extensively on the duty to defend and how we believe that he was breached but before i get into that i'd like to focus for a moment on what mount vernon should have done in this case because it's that point of why it is clearly established and crystal clear in montana when an insurance company is notified of a claim claim they have a duty to investigate in fact they even have a duty to investigate claims that may not be covered under the policy and then finally there's any doubt at all at that point in time the appropriate course is to file a declaratory judgment action you know i read the complaint pretty carefully it looks to me like the whole thing arises out of a dispute over the security deposit that is the heart of mountains defense your honor why is that wrong it's wrong your honor because the exclusions in this case in fact all of the exclusion in this case contain the same prefatory language which is arising out of resulting from in consequence of or in any way involving and then they list the exclusions and under montana lawyer that language is am where a gentleman is driving a truck towing a tractor behind him and he gets in an auto accident and they get sued for that accident and they allege not negligence for the driving but the alleged failure to supervise the employee well clearly the accident arose out of involved what the consequences of an automobile but the montana supreme court said we're going to adopt a minority rule from kansas we're going to stay the phrase arising out of this in big us and we're i think there are several responses that your honor first in the parent case which is the subsequent case the court considers the language resulting from it without any hesitation whatsoever the court said those phrases are equally ambiguous and the quote from a viewpoint of a consumer with average intelligence but not trained in the law or insurance business the phrase resulting from the use is equally doesn't beat us as the phrase arising out of the use so you have a  or in consequence or in any way involving that's a little more than both than either problem or fair or both of them put together are we going to have to decide what the montana supreme similar if you look at the word involving it's the same as the word arising and the word arise as stated in one of the sports opinions to travel to stitch and it said arise means reasonable for connection the dictionary that i keep next to my office says the word involved means among other things connects closely they both mean connect if arise out of the ambiguous then it synonym is also ambiguous and you can have the same analysis with respect to the word resulting from resulting means come about as a consequence again that's my dictionary if you look up the word involved it also means to have the necessary feature or consequence that both mean consequence and if resulting from the sense that us under fair and then in any way involving doesn't solve the problem you can't have to him but you was phrased clearly ambiguous under the law of the state of montana and then add additional verbiage to it and solve the problem ok leave me out that they have made this clear they would make it clearer by not using that language an example how they could word they would stay in the exclusion that the exclusion applies to claim specifically allegations as they stand them truth instead you look for the specific legal theory and in any event even if you add on these additional phrases to this you wind up with the interpretation from the perspective of the reasonable  a california case and yet discussed that language in any way involving it was in fact the phrase was arising out of indirectly or directly resulting from or in consequence of born anyway involving a breach of contract honor and sure you can write it easier and i'll be happy to honor and the cases that mount vernon relies on for this issue in fact the case that they cite in their party front page twenty two and they quote expensively from this case arguing that the phrase in any way involving is not ambiguous they leave out the sentence before that quote and the sentence before that quote says if the language of the policy is unambiguous as the parties concede it is in the present rule it's a rule that's very specific it's pro insured and it focuses on the specific legal theory only and in fact although this is a minority rule the chance the supreme court recently reaffirmed that rule in a case called and there's a series of cases from kansas all of them like the problem case where on its face the core allegations or her dominant factual cause of an accident wouldn't be covered and yet the cancer supreme court says this phrase i think that would be appropriate but i don't think it's necessary because if you go back and look at the one of the case which was the first case where the course court confronted this issue one of the things that the court rely on was the fact that there was a split amongst other courts interpret  race and ultimately adopted this minority rule and in this case there is a split decision about this word involving it means that will things and again if it's ambiguous if it's subject to more than one interpretation the insurance companies and this court absolutely has to choose the most narrow meaning to favor the insurer if that's what the rules require and that's not what they didn't this case now like to discuss briefly the spoliation claim because it's one of the claims that the court found that allege a wrongful act under the policy and also found was an exclusion but it it also said that there was no wrongful act alleged and we believe that the spoliation claim is important because it alleges negligence spoliation of evidence we discussed in our brief the all over case which recognizes both of these cause of action and the fact that the complaints in this case specifically allege do they allege week later that's just the life of a college student that's just fine that doesn't mean though that when a document is changed it was done intentionally that's true but it is a dog with it has to do with a security deposit it's got yes it's in part of it yes your honor i think it's security deposit issue or else they claim they didn't get back their security deposit and later the apartment store didn't keep its documents in order this relate to the security deposit even if you apply a reasonable reading and you say  it doesn't reach this far the insurance company cannot take an exclusion with broad language and sweepin the entire playing it ruins the reasonable expectations of the insured and it's simply too broad it has to be construed narrowly that's wh and finally i'd like to address briefly exclusions which is the exclusion about antitrust and restraint of trade the magistrate judge distinguish that case because the bear case which is by judge easterbrook exclusion for having a different title when it contains no title whatsoever and in fact the important part of what led the court to its decision and bear was the fact that they didn't buried a provision relating to  unfair trade practices amongst terms that talk about antitrust in restraint of trade again when you look at the reasonable insurer of ordinary intelligence he or she would view that exclusion as dealing with businesses interacting with my name is len sharper i'm from great falls montana i represent mount vernon our insurance company i believe the court is on to the main issue here and that is is this exclusion him on in the us or is it ambiguous and at least the court from his questioning appears to the policy and you can look at the context of the contract to determine the parties reasonable expectations here we have a property management company which in missoula montana manages apartments for owners over the years expectation of a reasonable insurer has purchased that policy is that if they fail to sweep the sidewalk and somebody is injured and they mean that that is an act of negligence and they are entitled to coverage if it gets to a complaint that they aren't of claims which are not going to be covered under the policy and has that preparatory language which contains more than simply the language of arising out of or relating defense costs in connection with any claim made against any insured arising out of directly or indirectly resulting from or consequences or in any way involving the return of rent security deposits or other funds held by an insur hunting site and then got out of the car i want to honor guards and fired a gun and there was a defective policy with the automobile the fact that they drove and i don't belong cause this accident didn't result from this accident clearly those are unique involving is more precise than resulting or arising i think it is more precise because evolving this is a case where i think additional words do clarify because involving day in any way resulting from again i think the resulting from languished implied it was ancient element which the court said there are two different ways of looking at it one is involving in any way the other is resulting from caused by and we had two conflicting ambiguity and that's an important point to make here and that is that under one kind of law you have an ambiguity where you have two similarly reasonable interpretations of a friend and we have not heard an alternate interpretation certification question for just a moment what is there any at least to my knowledge we didn't find any cases where the montana supreme court had considered either resulting from several it has insurance i believe that is the case yes but i believe that this is an issue of law it's an interpretation of the policy of the contract and that is something that this court is certainly capable of doing vision politics if you run a search with this particular language in this exact language and exact language you will uncover a number of different kinds of cases all of them are arizona mission policies typically profession me was not included in the briefing or in the additional citations or so that in the last few weeks i don't have the opportunity to respond to them but i suspect that again if we apply the rules of the mind and a supreme court will apply reading the contract as a whole assuring a property manager in a college town you know there's going to be disputes about security deposits and that is something that's going to be excluded if this court were to find that that is included within the policy it's been significantly changed the they have identified four caliphs that they say raises the duty to defend those four counts three of them are really skeleton counts that simply say the ass as alleged of constituted breach of the implied covenant well in that that's one of them the other is not following the proper move out of policy and the third is destruction of a document if you look at the complaint and you look at the allegations  allege that clearly the store intended to have that improper provision in the least because it included four different times it's impossible to look at those two allegations of complaint and interpret that as a negligent act sure to be an allegation of an deposit mylar alter the original statement of his position of the security deposit sheet by changing the dates to support his false representations and concealment of material fact that does not appear to be negligent a simply misplaced in the document are somehow unknowingly altering again that they didn't know was going to be important this is acting legit to do some intentional act finally it is clearly something that is involved in the return of the security zero zero doesn't equal one that is the heart of this case you can't take two ambiguous phrases add in more words and clarify it just doesn't work and in fact when mr temper was concluding and discussing what this exclusion means he said it means that excludes claims arising out of the return of security deposit we go back to a rising out of and again arising out of is as a matter of law a and i recognize that this is a minority rule i recognize that it's a very narrow view of what these exclusions are but the law of montana is what governs this case that's undisputed and montana has been completely clear when it comes to these kind of exclusions it looks to the specific legal theory it's a kansas rule and the kansas cases decided under this rule the same thing you can't read it broadly because the insurance company has a duty to do just the opposite as kansas goes through the or in any way involving language so that in your eyes kansas dealt with the or in any way involved in unfortunately i'm not aware of any case to that effect but there are several cases in fact th for five cases in this line of authority in kansas leading up to this crisp decision just last year with a reaffirm that rule and all of these cases are just like the public case where you have an automobile accident and there's an exclusion for arising out of an automobile accident in the court says if you allege a claim for negligence supervision then the exclusion doesn't apply that's exactly what has happened here there's an exclusion with this probably written prefatory looks to and of course this court has to follow montana law now just as part of the opportunity or the possibility of certifying the question well i would submit that if the court has any doubt as to what the montana supreme court would do then the appropriate course of action would be to certify the question but i think if you look to the kansas rule in the way that it developed and the fact that montana in fact didn't follow the majority view it adopted the minority view montana is a very pro insured state and the fact that they adopted this kansas rule demonstrates that now there's a lot of discussion about the fact that this whole case involves intentional acts well again i find it ironic because the insurance company didn't know investigation at all and in fact the complaints contained a claim for negligence it straight out alleged negligence and what the montana supreme court said is the only time an insurance company can ignore that kind of negligence claim is if there's evidence that it was an intentional act and there's two cases one is called burns involving unsolved and there's another one called strucker involving a sexual assault and in those cases there was a guilty plea so these crimes and in one of these cases firms there was