may try to highlight three issues i know it's been a long day i'm going to try to be enlightening and brief as possible one this is an insurance coverage case and in american economy says when we look at the facts pleaded in the complaint you have to take the complaint assume the plaintiff will prove what she says she's going to prove if there's coverage you of a defense or there's potential to reach your defense if there's not you know there's three exclusions that are applicable in this case the employment related practices exclusion and something unusual this is the two thousand and six edition of this indorsement now come back to that minute but it's in the record that h one n one and when you look at the violence as i so properties in two thousand and six that's important because the cases the trial court relied on did not they were two thousand and one and two thousand and two cases they didn't indorsement when we started out this case i really thought that the courts in both cases omitted the language from the endorsement because i'm sitting there looking at the door sweden has this language says this applies to defamation biased defamation humiliation and embarrassment or harassment that applies or employment after employment or during employment and i thought well they just needed that language later i went back and they looked at the dates and i realized that it wasn't that language wasn't in the policies they decided so the second thing that we're going to argue the first thing is going to be what the policy says a two thousand and six employment related practices indorsement shows no coverage now explain why the second thing is i think that for our board meeting near sheep follow that twelve twelve restaurant american alliance insurers come in versus twelve restaurant and that case said this employment related practices indorsement does not apply unless this is job performance related well when you read that endorsement there's no wording like that at all i believe she got that from five california cases who started  indorsement the content of these statements was not about alexander's work performance and therefore they do not fall within the purview of the exclusion so the course that look if this is not your work performance you know you get coverage it's only split if they talk about the fame you are humiliate you or harass you in your work performance the second thing is all of these actions were employment related so i mean it's the big word that they made a big deal about is the c word and that were going to be more humiliating to women than any other word that you've been on and that's what they're calling her that it's also humiliation both of them are not covered n they countered going that she makes against them says they mostly made false statements ok so they did it maliciously the defendant knew they were false and made them with reckless disregard and there's a couple cases which i mean i'm nine appellate judges i can't say they're wrong but i think they missed the boat they say if you plead actual malice a springboard in middle say you know what i know this is very probably false but i don't care i'm saying it anyway that's not and insurance companies don't provide insurance to cover intentional conduct so if you're going to go ahead he said yeah i when she says they did this to her and when you read the whole counterpoint it's pretty clear they set out to ruin her and i know there's allegations whether she called the police or something one of the things i see in the ad is you know what she calls a ses are doing those things so now they tell the police and everybody else you can't believe this woman she's not but we will so for those reasons those are the main grounds for which there's no leverage within the employment practices exclusion and the public works it well it's not about is john you know this is not about his job these are personal comments to him first of all that's not what the exclusions this if you look at the after employment paragraph thirty six s after i was terminated they call me the six names all of these names and the only relationship when you say what what was his employment relationship employment mean well it doesn't mean anything other than if it's before during or after employment relationship means whatever this thing is defamation it comes out of them being together in an employer employee situation either freely employment on your application you are right or after employment so it only means or some kind of relation having to do with the point it doesn't mean had she worked for them for twelve months as a general manager there is no relationship and they're not like the her haley mansion or jeffrey vi c n n are not best friends they're not like lovers they're not relatives they're not others so she is doing social things together the only relationship is two months a business relationship and all these things he called her are because she worked for him and these are what police department so i think there's no coverage you know because of that i think when you look at that case law and you look at the two cases and we relied on the west bend usual case versus rose restaurant said that's not true there's no words like add in the endorsement is not true just passed to have some relationship to employment in this case it's terminations because the letter got him fired so there terminated so and i think if you look at the two thousand and six indorsement with this language before during and after so this is a ploy for the defamation first before employment their employment after point when you look at that it's clear she's did this intentionally and the others material published with knowledge of policy they made maybe magine made these statements they knew they were false mostly just actual malice now the courts look at that and they said two things doesn't matter if you did it with reckless they're just regard even reckless disregard me i know this is probably false but i'm doing it anyway well it doesn't matter because all you have to do is prove you defend them and i don't think that's the law i mean i think you have to look wrote the cincinnati versus eastern atlantic he's like a genius university of chicago and all this stuff but in there he says you know he said well wait a minute if you look at this yeah they pleaded outside the co defamation but they were pleading it for punitive damages so the only reason they were pleading this was to get punitive damages so it really doesn't matter who's going to be covered and then you know it's not worth of lawyers the law is what you you have to assume be proven and if they please something for punitive damages if you assume that we've proven and there's no coverage and the last thing i'd like to say in my minute or so is you know what everybody looks at insurance companies like this we all feel when we have an accident we should be covered and you have to look at the insurance contract to see if you are covered everything is covered i had some guy who burned down somebody else's house he said well my insurance should cover so why you can't  mansion is not on file the coverage he intentionally did all this stuff and there's no excuse for that and it shouldn't be picked up that one piece i cited was the financial case where the court said look you know you don't get insurance is not a get out of jail free card you can just go out and blankly you intentional step in the insurance company will come and pay for you so with that i would ask that respect that the trial court be reversed and i point out and not taken on the trial judge because i don't think she had this two thousand and six amendment we've raised it before during and after but we didn't know i didn't figure it out that i'm doing the reply brief that these pieces were all in the language was in the union so she didn't get a chance to consider aren't oarsmen as it is now thank you very much fossil i would like to go straight to page one hundred one of the law which contains the employment related practices exclusion on which the insurance company primarily robots and this really is a case in which an insurance companies trying to avoid its duty to defend by frying to rewrite an exclusion after the fact if you look at the exclusion it says this insurance does not apply to personal and advertising injury to a person arising out of one of three things refusal to employ that person that's arctic kirkby terminations of that person's employment this is with the only appellate court has found in the two cases that have interpreted this exclusion one of these torts or allegations of one of these force could fall within the scope of this exclusion if it is an employment related practice policy act or omission in the briefs filed or this court and an oral argument counsel asks there is this one limitation that the defamation must be employment related or must be employment related practice where that limitation come from well it's very simple it comes from the policy itself it comes from the exclusion itself and sub sea defamation or allegations of defamation could fall within the scope of this may be employment related and therefore me fall within the scope of this exclusion if it refers to the employees dropping formants or if the defamatory statement is offered as an explanation or any justification for the consul tries to make a distinction based on the fact that this exclusion earlies this version of the solution originates from two thousand and six that was an argument that was not presented to the sort of work and so it has been waived but even if it weren't waved it would still be incorrect the only difference in policy language the council points to is in sub par one near the bottom of the page in the bottom of the right hand column this c we have to be talking about injury that arises out of the refusal to employ someone someone's fermentation or some other practice that is employment related that doesn't meet one of those three standards and you don't even get to the language here in subpar one for that reason i would argue that councils argument is in this place the defamatory statement still has to be employment re and the insurance company's argument in this case that the employment related practices exclusion bars coverage for all defamation claims land always simply is not a wall and the fact that this version of the that she was incompetent that she was untrustworthy that she was a zealot that she forced others to act that she engaged in criminal activity and that she was a dishonorable woman alleges that these statements quote imputed a lot of integrity and chastity most if not all of these statements simply have nothing to do with employment most obviously the statement  statements alleged by the employee those that related to the his sex life those that were personal insults or anti gay slurs they were not employment fully not they did not relate to his job performance at all and therefore the insurance company in that case had a duty for that likewise in this case at least some if not all of the allegedly defamatory statements in this case were personal insults ms court health that because in that case the allegedly defamatory statement was made as an explanation or justification for an employee's determination the employment related xs exclusion applied but in less than the stated that it did not disagree with the holding a full restaurant from this is at three seventy eight illinois or it is not quote in any event we do not disagree of course before i do so i would be happy to answer any questions that you know me on the first solution but one point i want to make absolutely clear is that the insurance company in this case is arguing that any defamation cla m is covered by the employment related practices excludes that position is squarely contrary to two decisions of our policy or and it is also contrary to the plan language of the employment related practices excludes it is simply too late for the insurance whether it was false or true and so again reckless disregard in defamation law does not equate actual knowledge as attempts were to argue otherwise is simply contradicted by controlling it  and sold to its insurers i would be happy to answer any questions that the panel may have thank you thank you of intentional conduct there's no coverage it doesn't matter what she has to plea at trial or whether she proves reckless disregard a trial we look at the complaint to decide the duty to defend based on what's pleaded in the complain assume that will be true and that will be proven you can't speculate what might happen if ryan and for him to say look we maybe they don't prove reckless disregard promise now she pleaded she pleaded it was intentional with actual meant to do it and always throwing in imus i know it might have been reckless disregard and it's like one of these things are going to give the point of you know you read the complaint you know what she means now you can't advertising injury personal injury includes false arrest malicious prosecution libel slander it doesn't say this insurance does not apply to defamation that is not employment related any defamation is excluded the employment relationship means that somehow this whole thing between the two people the employer boy and she's an ex employee former employee a rose hour is something to sue the insured or whatever is some third party sushi that excludes coverage for employees there's no coverage under c t r l policy for any claims of employees that's what this exclusion does in the personal injury which is not related practices liability insurance and that covers any employee or former employees defamation and we paid that they got their full coverage that they paid for so there was one ex employee and you have to read the whole time i mean sometimes we look at things and we're trying to find an excuse to put something on the insurance company when you do intentional conduct like i said some guy come and say burn because the guy wrong and he want insurance go just as well you can't do that you know and he can't do what he's doing he doesn't like this lady even wasn't trying to be nice to her he thought she was wonderful we hired her is a general manager now she doesn't play ball i don't know that sexual harassment or you know whatever he was doing she won't play ball so now he fires your knees and you're here and i think there's not supposed to be coverage for that now think we should bend over you know