alleged employment related after all measure or even whether it was more likely than not what i'm asking your honour's to do today is to engage in a process of conceiving because that's what the california supreme court says that the court must do on with you have a duty to defend the station is there any conceivable way of reading the underlying complaint to allege something other than an appointment related act now the insurance company in this case it's a minnesota insurance company the record shows that when it got the beardsley complaint all it did was to read the complaint and draw the conclusion that this was an employment related series of acts that the defamation had to do with an allegation of them while you dishonesty and thousand of company fines i i will not argue that that's not a reasonable deduction however the question is is that the only possible deduction because the duty to disband has a hair trigger on it the reason is that when one buys a liability policy one is placing one's one's fortunes and one's future in the hands of the carrier that has a duty  to control the defense and settlement in that case and the california supreme court has held repeatedly that means that the carrier must act as if it were rated x as if it had a quayside public function and that respondents in new york cases in which the court after a trial on the merits of a coverage action not having to do with a duty to the family but with regard to an indemnity decision on the settlement in other words clearly employment and employment related crime i would suggest that in a well it might be at the end of the day after trial on the merits in the insurers declaratory relief action that could have happened here if the insurer had stepped in and defended under reservation of the clara tory relief action separately and brought out the testimony that you correctly pointed out would not ordinarily come out in the defamation wrongful termination action but get put facts in front of the trial court to show one way or the eight cases articulated as being sort of a totality of circumstance that the court has to look at to see if there is one conceivable unemployment non employment related context and content of the communication and i if if first sample punitive damages were asked where they were here based on a malicious defamation defamation need not be intentional to be actionable but in order to produce punitive damages it must be intentional it must be malicious and that's what employment related it was a personal defamation i three with that because what was at issue was a theft of company money now that means that in order for me to show that this was when in the course and scope of his duties as an officer i have to point you to the allegations in the complaint that show that what was alleged to have been stone was company money he was protecting company money or purporting to in making the allegedly defamatory statement therefore if she felt that the company money could that she had a right to the company money under community property law in the divorce action he had already firing that is a fact that i believe should have triggered the insurer to say wait a second under the california  s that were already had already been on the books as of two thousand when this claim decision was made there is a relationship other than the employer employee relationship at work here so the next question would be what is the content and context of the statement and the context as a in a strange spouse who also was an employee sang to her or excuse me been told by her strange husband who is also her employer you interprets this exclusion of both of its exclusions as excluding all claims by employees under any circumstances against their employers for defamation that is not the law the ninth circuit found  equities that it was a that that was an overly broad interpretation of the exclusion and held that that was not consistent with the reasonable expectations of the parties in other words it was doubtful montrose urana ok but the supreme court held in montrose and actually there are a number of cases that that followed where they held that that the standard is under any conceivable theory but there'd be a potentially public claim alleged in the this was an employment related defamation filed declaratory relief action has faxed the charmin in that action and have a jury and a court make findings of fact as appropriate then the standard would be more likely than not  there is some possible extra employment relationship between these parties what then was the content and the context of the communication was it clearly employment related we're calling the question for your his motive was to was to get specs from her on the job favors now the fact that that was an allegation that she did those friends places that outside the employment context but what if she instead he tried to get me to have a personal relationship with me in order to get on the job think that what if it was an attempt that would still be actionable as an invasion of privacy as well as sexual having a sexual relationship in order to get on the job favors now that sounds employment related to me the fact that the actual defamation not notwithstanding the motives took place o that three things your one the fact that they were married had been ongoing for some time to that their marriage had deteriorated and in fact time beardsley had filed a marital dissolution action and three that he had encouraged her to regard company property as community property and they did a divorce filing this in the complaint you know i don't think the actual date was around her but i believe that the good morning it was the court i think judge moral captured the legal issue properly and judge a person does likewise the real question is the content and context on it is not about motivation i about whether the facts alleged in the complaint great potential for coverage and your honor you were asked about the spirit of the duty to the point of being based on any conceivable theory that's not quite what the standard is in potential for coverage i would submit to this court that if one looks at the complaint that was filed in the underlying case and one uses the content in context analysis that has been singly identified as the appropriate standard for analyzing and employment related practices that lucian but there can be no question that in this set of facts there can be no potential for coverage the starting point is looking at the con it that way or you could focus on the context which seems to be alleged throughout the complaint in the context of this bitter divorce and proceedings going on and the inner relationship i think there are two ways to look at it number one let's look at the context as it's been identified by the ninth circuit n h s services and the rocky cold case the context there was clearly outside of the didn't relate to her performance but also in a context that was unrelated to the workplace in a just terms as the context was we have a competitor who was a former employee people were inquiring about that former employee who is now trying to take our business here is the way we're going to attack that competitor's relationship with customers in a context again having nothing to do with the employment scenario with the emp relevant hack raster packs are seventeen and paragraph and thirteen is cause of action and neither of them are very specific at all of that i thought they were of looking at it now it's not they are about where this actually something to do with the question because the argument as i understand it is that is exactly the century when he was saying because this property that he was accusing her of taking was property that was relevant to  something like look this company is half mine and you are not letting me have the assets of the company that i need to live that's a different scenario then i need a check and the allegation that you're taking company money again it's directly related to the performance of her duties at the workplace in front of employees that gives rise to  rewrite the complaint you would do two things one you might take it out of the employment related practices exclusion a future in this into a personal vendetta about ownership of the company but you don't have those allegations function the response when told that there are insufficient funds for the company to have a check or the company's function as you must be stealing i think unless you utterly ignore the context of the statement you can't make anything other than an attack on an employee for taking company money let me ask you something else  only as an officer of the company performing acts as an officer of the company they gave teams coverage because otherwise he's not an insured and if indeed these were personal attacks a spillover as you're suggesting a progression of just harmony from the days that preceded it and this was a marital fight not a fight by an officer acting as an officer officers and corporations are not in trusted with the obligation to bring their marriage her for a check for the company barbecue and you're assuming that happened in the office in the ordinary course of her duties as office manager but if all you know is that he asked her for the check for company barbecue he could also be down having a meeting with the city people who run the park where they're going to have the barbecue have another company employee with him and she comes down on company business and he says i made a check for the barbecue here the people that we have to pay and she's we don't have any money  you've been stealing so that doesn't happen on company premises it's obviously company related but that doesn't change the analysis it would change the analysis potentially if you've got people who are not wholly employees to bring it back into the fashionable concept we have here now let's just run in there allegation that company employees heard the statement right but it wouldn't have to be on the premises my point i don't think the premise just opposed i think we had only one conclusion which is you've been an office manager for twenty four years you're sitting there there's a request for a track and it's over heard that the fines are male because you're stealing i don't