to the other side yes i did offer them to mr amand honor this case has been before this court previously and the situation here remains the same there are three reasons that the district court's decisions should be reversed in this case first the district court exercises subject matter jurisdiction in a case where proper alignment of the parties destroyed or precluded the existence of diversity jurors stiction second the district court improperly found that only the only reasonable interpretation of the underlying facts in this case amounted to only one occurrence under the relevant insurance policy part of that policy and then thirdly the district court erred when it found that there was no coverage under part b of the policy as this court noted when this case first came before the court this is an extremely unusual case where one of the plaintiff's alleged illegal adversaries actually furnished an affidavit to the plaintive through its president is the kentucky housing authority self insurance  them the president of case if and he of erred there in that he had never had any belief that there was coverage under both parts a and part b and that he never expected or concern as we have argued as to whether there was in fact any adversity between the housing authority and evanston what it remained what happened what the district court address the four concerns that this court raised and from our standpoint downplayed each of those or or did not address them we think with a proper respect for the limited jurisdiction of the federal courts  of one party or a person in fact of course the affidavit in question in no way attempts to limit its opinion to being just one person's view of the matter whether he was speaking on behalf of a party disclosed himself as the issue about whether he had limited authority there's been no claim made that he was circumspect in his authority it certainly was presented as the position of the housing authority itself evenson attempted to utilize  show the court that if your court that is that look even the defendants don't believe that there is more insurance than we are arguing that is an evans and was organ existed so it was by no means parties you have the insurance company usually on one side the insurer the individuals and here we have the fun but but the that's the intuitive self interest initial approach to an insurance cover dispute in that clarity or judgment setting i do agree with that that that's the norm and what makes us different is plate them step you know affidavit is that what's going on or do you not even agree with the norm point i think is an abstract matter generally when there is a defended who's been found liable and they're going to want to avail themselves of maximum insurance i think is an abstract matter we wouldn't kora with in principle but the circumstances here though not just  affidavit but even before the federal action began the insured in the situation began to closely aligned itself with the insurers position and argued in state court that the insurers interest in a federal for be protected even though local well that's you talk about state court action that's currently that's that's quite different that there are different normal plies once you figure out liability then insurance company on one side insured individuals on the other but i quite agree that the state court when you're figuring out liability you have different interests at that point but i thought i thought in a declaratory judgment action once you've figured out what the liability was normally insurance company on one side and everybody else on the other because they want as much as they can get out of the insurance company so i don't it doesn't seem to me very helpful what happened in the state court is what i'm saying were clarity in the say court action we were seeking at the time in question to join him and send as a party to provide coverage for the underline liability judgment so to that extent the state court action and its posture at that time was really indistinguishable from the declaratory judgment action so in other words we were asking the state court to find evidence and liable to pay that judgment in state court and even though that's what we were seeking to do the housing authority defendant still attempted to use evanston in advance their interest in a federal form so again at that point even though there should have been a natural divide between the two there their interests appeared to be alarmed and in fact throughout this entire case evans evanston and housing authority defendants have always been on the other side of the from us there has been at no point any indication  of two thousand and fifteen a ten fifteen that's correct and when was the section started section was started in february of two thousand and fifty so what about i mean here's the way i think of the affidavit so just tell me what i'm missing and let's let's make it let's forget the fun for a second so we've got insurance company evanston and we have county in the individual's right and so i imagine a world in which normally the county when you say can you mean the housing authority yeah the government will call it the government entity so the government entity they know they've got liability so we're at a situation where you've got three point seven million dollars liability county doesn't want to pay it so they're naturally adverse all right because they want the insurance company to pay is every dollar the insurance company pays they don't have to pay so that's good so in terms of diversity jurisdiction they're  erse for diversity purposes but it doesn't seem to me problematic if hypothetically the county looked at the insurance policy and said to be honest with you we think it's kept at a million that's just what we think i mean we're unhappy with that we worship warren so but we don't think there's a good argument that it goes beyond a million what that does is established a possibility of moving this doesn't tell you anything about diversity in my view that's that's the kind of analytical flaw forgive me of your side i i think the late them document doesn't tell us about adversity it tells us about well gosh if everybody on that side of the case agrees or is a million dollar limit we have a mood dispute i mean it's not there's no longer alive case  or controversy but i don't think the affidavit necessarily goes to who's on the right side for complete diversity purposes so tell me what i'm missing because that's how i think about the case well i think what you're missing believe so ok so what's wrong with it well it's two things i think first of all if there was no disagreement between the county or the housing authority defendants in this case with evan since position then on this in this was th individuals are like they don't trust the counties ability to come up with the money and so they really want evanston to pay docs and eleven cents a billion dollar company or whatever and the money will be paid right away so you don't have a boat entirely moot dispute at that point but my my view is this is why the late the map affidavit just goes to the possibility of moving this it doesn't establish whether we have complete diversity you're saying that they should be realigned in the situation that's correct or when once  once it was clear and we argued it was clear from the outset and we raised in our answers and at the outset once we were doing in the case but the leave the matter david sealed the deal made it crystal clear that there was no adversity between evanston and the housing authority defendants at the honesty of an employee or a president of a company or a governmental body doesn't tell you what their natural interests are no but when they go natural this is about what their natural interests are right case they should be joined as one one side of the b and those who has a dispute about that issue that is us should be on the other side of the big and the problem with that is the housing authority stands for kentucky residents we're also kentucky resident so there was generally that's the case in this case it did not obtain however the in this case the insurance company and the insured were in the same legal bed together at all times there was never a divide between them and that's where let's let's just say we look and i thought i read it the right way they're going to be thrilled everybody on that side of the v will be happy they will have champaign they will say this is awesome evanston is taking care of the whole deal until the premium the next time when when when the housing authority defendants have to pay a premium that reflect point seven million dollars is a lot to be happy not to have to pay to take a long time for the premiums to get you close to three point seven million respect to the premiums well i mean i think there is and we've argued that there and but it's not directly germane maybe to the diversity issue except in so far as it was a substantial premium to be paid for both i'm asking a different question is there something special about the pricing of the policy that makes them especially interested in not having evanston have to pay out is there something in the formula that's that ties the formula not to general pricing of insurance but to the payout under the policy i'm not aware of anything ok there was no discovery take ok that's i just want to make sure that you're not trying to say that somehow in a much more direct way the the the premium was going lesser degree with one would expect so i just you know i don't come across to many people maybe this i need to live in a approach of that with the elite but i don't come across too many people when they're facing million three point seven million dollar judgments that i like and i will help but pack as i hate those premium increases that really bums me out i just never encountered that and i agree your honor and became i've never encountered a case where the insured colludes with typically dependent on what the party say their interests are and so i think again that's what underscores the importance of this affidavit it wasn't just an affidavit said you know that we've settled with evanston and they've covered us you know for the million dollars now we don't believe that you know there's more than a million dollars in coverage but the affidavit gets sort of said we never believed i stated it as the right question the right question is who do we want to win that's the right question and then affidavit along those lines sorry i know we haven't talked about what we've talked about one person's impression of the meaning of the policy you want to give us a two minute set of thoughts on that are you well i mean i hate to have you say but offer a bottle that's a little the supreme court said that the word accident is not a big us but it was because it supplied a definition which indicated that the term accident is tantamount to a negative or unfortunate  consequence and so what we have here three injured parties we have more than one negative consequences the district or in this case cherry picked the holdings of fryman found that the term was an ambiguous but did not use the definition that prime it supplied which rendered an ambiguous so we think that was improper interpretation with respect to the second part part b if there are two section three e s in this case the one that's really central to the outcome we believe is the test is three for the fifth page of your handout it's also in the record a docket number thirty four for page id eight hundred and it provides that if they if they if there's an occurrence that's gov part of a and there's also a wrongful act that's covered under part b then only the coverage part with the higher limits will apply to the claims well if you're honest look at the victory you can see that there are no higher limits provided in this policy both part  the declaratory judgment action that evanston filed against the griffin defendants strongs clients as well as the housing authority of somerset and self insurance on was found on february eleventh two thousand and fourteen at that time the housing authority of somerset was facing down the barrel of a three point seven million dollars judgment that had been entered in the plasticky circuit court mr latham's affidavit which they want to cite as the primary basis to try and defeat adversity that the time that the declaratory judgment was filed was not signed until november of two thousand and fourteen so more than ten months after the suit was filed was curiosity have the individual plaintiffs been paid a million they were paid the million dollar at the time of the settlement the time of the settlement and that that timing is key to your honor because after that could first of all we got the judge minute against housing more authority of somerset for three point seven million dollars in favor of year much later november fourteenth what happens in the interim is in april or may of two thousand and fourteen two to three months after the declaratory judgment action and filed there was a mediation in somerset kentucky that former chief justice joe lambert mediated and that's where the agreement was reached this referenced in the record and after that agreement was reached evanston paid the million dollars which was undisputed that they owed under the terms of the policy arguing that there is more than a million dollars in coverage available under the reasonable expectations doctrine under kentucky law which the reasonable expectation the insured our argument response was well we don't think that signed an affidavit saying here's the way i read when losing by winning yes and i've learned that but i was trying to defeat the reasonable expectations doctrine at the time so i hope i think to understand the context of how this thing occurred but that affidavit does not in any way defeat diversity in the adversity of interest that existed at the time the lawsuit was filed the cases the united states what about what about this way of thinking about of the mean you would think the fund would normally want its insured sick lect as much as possible so that would make them seem to be on the right side of the case but the fun as some of these documents show represent all these other counties or other government organizations there that changes that change it a little bit i mean because it is true it is their premiums will go up a little with a million more with three point seven so what i mean i still think they have a fiduciary duty to help each individual government on and as much as they could but they guess i kind of see this point that everyone else is not going to be hurt when they do in it their it's a self insured fund and they were the named insured but the house you know they did their interest were absolutely aligned directly aligned with the housing authority of somerset and so that doesn't change the fact that the time the suit we filed the suit the interest of everybody the housing authority summerset thousand was to avoid an excess judgment which is what they were facing so that's why their interest were clearly adverse from evanston at the time to declare to or judge was actions file in their answers to that clear to a judgment complaint they took the position that first of all it calls for collusion law i mean the standard stuff you see it calls for a conclusion off but we otherwise do not the allegation that it's a million dollars in coverage only as we alleged in that complaint the settlement was reached in april of two three april or may of two thousand and fourteen months later they have not cited in their brief one case one six circuit case that says that you should look to things that occur after the time of the lawsuit was filed in the dock to be looked at to look it wisely i think the law is we've got to look at the time the suit was filed and that's the key they cite one case in their reply brief they cite a district court case and with a well written decision by judge the heller the cold case  district court judge on remand looked at all of the factors that the six circuit questioned in evanston one and i think it bears emphasis to recognize that they didn't raise jurisdiction till the appeal in evanston one never brought a jurisdictional question before the district in which they have a right to do that but it helps explain why the record may not have been quite as crystal at that point in time and then judge reeves on remained looked at all the factors from evanston one in addressed them and said you know when you look at all these factors believe them affidavit the fact that they didn't follow up brief fine they don't address the keep component is what were the interests of the parties at the time the lawsuit was filed and he really conclusion that he had jurisdiction based on those cases now with regard to the guy said before you get to the next point just a shifting interest point so i totally understand why evanston still cares about this two point seven million or up to that way or another government authorities are usually good for to why do they say why do they care about me i don't understand why they care about this do you mean the individuals yeah they care because they want to win this case because if they if if they get this court reversed and find that there's more coverage that money goes to them now but i mean they have a judgment they have a three point seven million dollars judgment lease the when they settled the case they released the housing authority and they released oh oh they are they don't have any doubt on that agreement yes that that in april of two thousand april or may of two thousand and fourteen if this me ation they agreed to take the million dollars that evanston had tendered they agreed to release the housing authority of somerset kentucky housing of the result insurance fund at that point and five or six months later in november of two thousand and fourteen all right so with regard to the interpretation of policy itself i mean what this really boils down to is does kentucky follow given the language in the policy and does party apply judge reeves in the district court concluded that did the public lot of the public liability portion for an accident and is this a single occurrence or do we have multiple occurrences such that we get to the two million aggregate as opposed to the one million or a current kentucky law that we cited in our brief i think is in line with the majority of jurisdictions that have found that we they adopted the cause theory we have to look at the number of events that occurred that led to the to the injuries and in this case it's undisputed one tree fell on top what they want to do what they're arguing is that kentucky should it law should be construed to adopt the effects theory which has been clearly a minority view across the united states and under the effects theory you look at the number of people that have been injured where they would qualify because they've got a unfortunately dead  old mother her fetus who died in this accident several hours later they've got an injured cousin mr thacker who was there but i think the law wisely says that we don't adopt that affects the road it's better to look at the cost the number of majors the actions the effects very very limited number we put in our brief your honor we listed him and george the majority of distinctions that adopted because i can't give you the exact number but i know that because theory is the majority rule in the united states and in kentucky the cases say that that's what we've adopted contrary to what mr von was arguing on appeal here is if you look at the continental insurance company versus hancock case but which they don't really address but that case clearly says in kentucky law that they we look at the at the at the cost area that was a case where three individuals who got involved three patrons of a bar got into a fight with three employees of a bar and an issue became you know how many occurrences happened as a result of the injuries that were suffered during this march fight in the kentucky in the kentucky courts said this is a single occurrence that bar fight was a single currency we don't look to the number of people that were injured that same rationale was adopted in the gateway insurance company case that we also cited in our brief where they recognize that kentucky has adopted the cause theory this affects the eeriest not one that has found any strong supporter that i can find that's ever been adopted in any kentucky case in judge reeves recognize that in finding that that's what we're dealing with here we've got the party policy and the party public liability policy that's been triggered it's a perk or as we get a single accident it's the million dollar limit is the single limit that then applies that was paid and we don't get into the part b part part b is the public officials liability part of the form and that covers wrongful acts is defined under the policy so in example with if the housing authority been sued for employment discrimination or something along those lines that would trigger well let's assume it applies then what harper lee's assume it applies same and i think it's as claim vs claims as the only differences in those two paragraphs but they both say the same thing when you read them they say that if you've got an incident that is an occurrence under par today but is also qualifies as a wrongful act under part b then whichever coverage limit is higher is the one that applies but only one then it says however if in the situation where you've got an occurrence that's also a wrongful act and if the limits are the same if they're equal then in that particular case the party coverage applause that's with paragraphs three ysaye in both of them and so in this case that's what we've got we've got a million dollar single limit per claim get a million dollar single limit per occurrence we've got two million aggregate under both coverage forms and judge reeves correctly determined that in that particular case given that language it was clear it was not in big us that we're looking solely at the coverage part of a in this particular case and evanston liability in this case it's policy it's contractual obligations given the facts of the case are limited to the million dollars which evanston has paid so for those reasons we were asked this court affirmed the district court's finding that it had diversity jurisdiction at the time the lawsuit was filed and that it correctly determined and interpreted the insurance policy that says you in this case and this the court is in no questions for me at this point  just pick up where you left off yes in fact that's all that's very helpful there and it mean for mr mann to paraphrase the sections but as is the case with any interpretation document we need to look at the actual language and again i'm referring to eighty eight hundred which is at least page five of the handout that we have furnished the court and what it exactly says is that if there's coverage under way in coverage under b that is if you have an occurrence and you have your own flag then and i'm picking up from the last and last clause that's highlighted that only the coverage part with the higher limits will apply to the entire clinton's when i've left off i indicated of course you look at the big sheet and see there is no part that has higher limits they have equal rights now this is what's so key about the actual language it's as if the a political limits of each coverage part are equal and that's that's where the word a political becomes so critical here because  because so this rests upon agreement with the idea that there is more than one occurrence that that is correct or if that's wrong then this part b thing doesn't really get you anywhere and i think that's correct your honor and that would dovetail perfectly with kentucky supreme court's decision in fryman which said an accident is an unintended or negative consequence in the same so if if the district court you think you agree can kentucky follows the occurrence approach but you just think this particular case helps a lot break how the occurrence approach works and does so in a way that helps you is that the way to put it known the continuous record hasn't decided at least clearly in any opinion and there's no kentucky opinion it's in the effects camp or the cause camp and that's really the two claims that occurrence is synonymous with an accident here the question is what is an accident is decided by the effects or the cause and no good supreme court or any other kentucky state decision has ever rule either way but what if i did or ya city i'm for my purposes i think of as the occurence but i guess you call it cause either way that's clothed majority test how many states other on the other side i'm not aware i know that is the minority approach i would submit to your honor that it's really an academic question the kentucky supreme court has routinely or at least on several occasions been willing to adopt its own position no it doesn't say that an opposite effect says it in say a ups acosta is it doesn't explain his rationale at all so there's nothing to be divine from hancock at all and so when so davis the court of appeals case when it says kentucky adopted the cause approach citing hancock it was just exaggerating or going a little further than the law you said they made the davis versus kentucky farm there are a mutual insurance company i thought it one point says they've adopted the cause approach and cited hancock for that purpose you're in i'm aware of the gateway case that the district court relied on and it's said that kentucky and that's the only case that the district repeated exposure to the same conditions resulting in bodily injury or property damage now the gateway court itself as we indicated in our brief said that this definition at first glance appears unhelpful but the nevertheless went on to emphasize that inclusion of the causation words resulting in and that definition meant quote that the ordinary meaning of the word accident must be modified so in other words the case they're relyin upon had a different definition and it was gateway's recognition that that different definition meant that the word accident had to be modified from its normal mean its normal meaning is established private i just curiosity i know kentucky does things its own way and not right on that but if this case were in a jurisdiction that followed the cause test which you agree this policy would create a problem for sidling up your own there are two in the deal just doesn't matter at all from you it's easier to meet the effects test we have three victims here three negative consequences it's easier to prove that the cause stated that we have two different causes here for injuries we have the infant child that was  that died from cardiac arrest an hour later after his mother different cause his mother died because of i'm sorry you're american here those are of fed ex not causes in the sense of insurance i mean if they're not providing insurance or  for people on how you look at it you know from our standpoint and we've cited several cases that we think this is more comparable to this was a tree that fell but a tree is not just one item three is many branches and just like in the  cited from the supreme court where an individual or two individuals were shot by two bullets from one gun the the even under the collar standard there the florida supreme court said there were multiple causes because first off the insurer failed to define the policy with specificity the to exclude that any have to indulge the presumption of wide and liberal coverage were possible but also because there were two instrumentalities or two parts from the originating item or instrumentality here because here we had two people injured by two different parts of the tree the testimony at trial was there were many many yards apart from each other two different limbs hit them so this is comparable in that sense to one knowing more about the facts maybe it was one punch that knocked him over then i don't know i mean that would that would explain the situation and it may depend on what your station that was from it was in the kentucky case because again there's been no kentucky case that has said the causation or effects testifies definitively other than fryman when it says that the term is defined by negative consequences now that sounds a lot like the effects test to make when you're focused on consequences rather than cause but it's our position that even if you do look at just causation we still have at least in cook about a bar i thought hancock was the case about a bar fight you seem to say you dread that case many times yes i will answer judge white your this was a response to your point that a tree has different branches and maybe one branch you know cause one had want to fact the other branch another effect and what matters most is not in this so the words of this or that opinion it's the fact pattern and what the outcome was relative to the insurance policy so you may be entirely right that hancock doesn't say today we adopt a cost test that the more important question when more important in that sense would be what they were actually doing features it is the most authoritative statement on how kentucky courts define the word accident and i would just mention about judge sudden you're concerned about the consistency of these cases there is a a treatise or e or an article that we have cited and i think even the court noted it in evanston or there are a long line and specifically i mentioned the the article of the law of liability insurance i think is  that there's a there's an economic article and i can't recall what it is but the point of that article if if your honour's have an opportunity to read that is these decisions a lot of these are very inconsistent situations it's very difficult to figure out why one court would say the bar fight would constitute one