question really there's only one question in this case is whether or not there's a duty to defend when the pleadings only seek damages in that occurred outside the policy period on december st of two thousand and sixty some two and a half years after the mid continent policy was cancelled and three we know that the underlying suit the underlying pleading or the controlling pleading is the nd amid a petition which says that the injuries and damages suffered by plaintiffs and made the basis of this action a rose out of an occurrence older about december right rose out of an occurrence this is that the act of pleading right arose out of an occurrence on or about december one two thousand and sixteen at the property in question that relates back to construction and or installation of siting occurring before the date of loss of it's in the and basically what they're saying is this fire that occurred on december st relates back to the construction that was done earlier otherwise it had nothing to do that if that happens in every construction defect case case it wouldn't have that it does in the construction  completed at one time and at some point in tub in the future you have a fire you have a defect you have something but it all relates back to the original construction that was done earlier and so that's as it is judge  seeking party damage that's covered by the policy in order to have a duty to defend and we also know in explaining that that you should explain the difference between a commercial jet a comprehensive general warranty or the builders were empty that would be different that would cover this that would be different if it's from his work but here we know that the this is an occurrence policy that is the occurrence property damage must occur during the postal period and we know before this fire occurred the policy had expired or been cancelled for two and a half years and we know as the court has pointed out that in order for there to be a duty to is property damage that it occurs during the policy period is this what if instead of this fire happening in december th in let's say a november th scene a property owner decided to sell the building and some inspector petition are they did this construction and the installation of the sun paragraphs well purpose fifteen paragraphs twenty that they did if this occurred during the construction and this is their work then there would be no coverage under j five or j six that's what this court said in b r v in v a r v and we had the the policy when it was built then the policy cancelled and then the wall collapse and that's the contrast between general liability verses insuring a builder's warranty well the thing is insuring a builder's warranty would have covered something that or it should be warranted like how i put you know the nails and in the end to the  this is the something they are the judge in the r v this court they were arguing well this crack started developing during the policy period and they gradually got bigger and bigger and undermine the wall until eventually  they said property damage does not necessarily occur at the st link in the causal chain of against events giving rise to the propaganda is the focus must be on the time of the actual physical damage to the property and not the time of the negligent conduct or process that later results in the dead in the physical damage to the property than my own prove that if it could be argued but then it's going to be excluded as i said that the damage to the wire would be excluded but not the resulting loss claret but but if you're saying somehow that the piercing of the wire back whatever the property of whatever was built in there's nothing in the pleadings that say that there are  dates they are about when the the property was built but if that was then we know that it was during the construction process it was ongoing operations and it would be subject to j five j six which is what the discord held in the v r v case they said look even if the crack could be property damage it's going to be excluded is so therefore you can't use that crack in the wall to give rise to a duty to defend that under i want to try to siding his property siting property wiring a property i mean clearly but the question is is it so the wiring is property clearly the wind there's damage to the property because the nail goes through the wire well two things one is you have which would exclude property damage to the insured work while the insured insured is conducting the war but the two is they must seek the risk be a lawsuit seeking that property damage of appeals they said look only due to defend what governs not is what could have been saw but what is actually saw there was later another case clemens versus state farm where they said again we're going to look at what actually a saw but we know that the house fires not be covered because it's two years after the policy period but if you look at the allegations against i just says we're seeking the injuries in damages suffered by the plaintiffs and made december st two thousand and sixteen i read it to say exactly the st use of the property in question this is again the complaint at a fire caused by construction and or installation of siding by defendants when defendants improperly hammered nails through electrical wiring and so that's the thing that distinguishes it from the pier case to the concrete foundation case i mean if if i put down the concrete foundation and it looks fine and the prop i'm looking at the property i'm looking at the concrete foundation there are no cracks in it right it's it's completely fine and then years later sifting you know in texas in particular we have all kinds of foundation issues there in the cracks are arise after the policy period it makes total sense right the that the that the cracks the property damage the damage to the foundation and resulting to the house that all comes in later but if the actual damage if the thing that is the the thing that causes all of the stuff that the insured is seeking happens during the policy period i don't see how that's not covered by the policy both i understand why it's the the i understand a client wants to distinguish the two of them but it's not either or it's both of them together is the source of the loss well but the discord in the r v if you look there they said you know we're not looking at the negligence of what caused well again it may have but they haven't sought they haven't sought damages for that that's my that's where i'm we're going to stand is was it was it would they have ever sued for this hammering of happens that's the day and that isn't what they said so then i well then going back to what we started off with why would an emory construction be pickings obviously if you have a construction defect you have because something went wrong in the construction so in every construction do you think why would you say it's always the insurance company was on the hook is the one that was there when the house was built an apartment complex was built because all of this that happens later on was resulting from the bad work that the occurred ten years they place a court counsel this is not a construction defect case construction defect cases a case where somebody intentionally put something in the house that was bad at the v h r b r v case was one where the wall was defective designed but the builder put it in the way that it was designed he didn't accidentally put the wall in wrong he put the wrong kind of all in and then the cracks happened and that was the property damage in looking at this case what mitt continent wants this court to do is again blur the lines between an occurrence policy and a claims made policy this particular policy defines it as physical injury to tangible property including all resulting loss of the property although should have been deemed to have occurred at the time of the physical injury the physical injury no doubt was the nail through the wire as alleged in the pleadings there's not been any trial of that issue that term and whether or not it actually is truthful but if we don't look at that at the context of the duty to defend the four corners of the pleading the four corners of the policy this particular pleading that we've talked about already does allege damages to the property it alleges damage to all the property  says the property in question had a fire has a date that relates back to the construction problem of putting the wire through in aren't all i mean even in you are wrong design or whatever and if they're going to sue the builder they're going to say relates back to his construction because he put up the wall wrong or he put up a wall wrongly designed or whatever you want to say it's always there's no construction case that's going to say mr gonzales showed up six years later and lit a fire to our house i mean those cases are going to be insured anyway so it's always going to relate back to the construction and that doesn't answer the question right well it doesn't answer the question because it has to go into the policy be an accident defines the occurrence as an accident if i go and i put in a wall that's the wrong wall the wrong specs but i do it exactly how i wanted to do it i didn't have an accident i put the wrong product in that's a defect that's not an accident or a negligence type claim which the policy is intended to cover in this particular case the accident was the allegation that a nail went through a wire that was not intended that was not a design that was not the way it was supposed to be installed were you can go back and use these exclusions to say your work product was what you design and what you did and it was defective this was a negligent act and not an intentional act that we would need the exclusion if what you said is rai if which you said is it would never be an accident to wrongly design there would any the exclusion for wrongful design so i'm still trying to understand i think this is a difficult area and i'm wondering would we value would it be beneficial to certify this because this kind of takes don's building to would another floor and i wonder if given that we're still i mean the idea building was you know we had had the manifestation and we had have this and we've had that and maybe it's the long ashore policy and maybe it's this and maybe you know we've been arguing about this for and i've been to dozens of seeley's about this in my life because in this case we have property damage that occurred during the policy period and don's building they had property damage with water and it's not really a on that it's on the fire which had there never been a fire there never would have been a suit so it's not this cracking it's not the wrong wall it's something because you could i don't know you could have put the nail somewhere it didn't belong and no one would and it wouldn't be a commercial general liability problem would be i don't like th nail sticking out in my beautiful sitting room where i'm supposed to be hosting my colleagues and that isn't going to be the same and alice is so i mean you can always say putting a nail in the wrong place is a problem and whatever we do we can always characterize these things but i feel like there's still i'm still struggling between these are two really good arguments and i'm struggling between where exactly the texas supreme court wanted to put it as though the court in that case was dealing with siding that was defective so siding itself was the defect but the damage was that the water was infiltrating the siding into the wall the house and causing rot and problems so we have the same fact pattern we have a nail that was not defective that was alleged to have been hammered into the wall and pierced a wire that caused damage to the property immediately it may not have caused complete one hundred percent damage but it did cause the damage at the time the manifestation was the fire two years later but that damage occurred and i disagree that this lawsuit doesn't sue for that damage because it's pacifically says to which to be the court should liberally construed relates back to the installation of the of the property in one of the allegations was negligence and failure to perform safe construction and or installation on the property in question and in the damage paragraph it says that the plaintiffs are seeking damages for resulting from the actual missions for which recovery was sought which was that negligence in the construction and it also says plaintiff six recover for actual damages to property contained within the property in question including but not limited personal effects and or temporary housing cost so they have made the allegation that there are damages to property within the property we can't speculate now that they didn't mean the wire or that they didn't mean the the wall in the tween or the space in between we're looking at a liberally construed pleading that seeks damages for property within the property we've got an occurrence we've got an accident for purposes of the duty to defend which is really the issue in this appeal the pleading covers that the policy covers that they have this duty to defend i really think when you look at these exceptions that have been alle j five and a six there are more of an indemnity question because they're going to determine potentially things that could be carved out if indemnity and liability is found so do we carve out what actual work was performed it doesn't say that in the pleading anywhere that my client put the wiring in which you know they're not part of the record but the facts are that he didn't do that it was a remodel addition you know the siding up appears to wire in the home or put into the house but that's property within the the the contractor from work whatever it might be it might be the siding and might be the nail itself not hammering out siding and but it's not the wiring because that wasn't part of the work and neither was maybe the insulation between the walls or some other things  that's awfully high definition casing i'm not sure we get anything because to me that my focus is on really i guess your best argument really is when in doubt truth and the facts are yet to come to light in this case because we haven't litigated the underlying case the plaintiff has been patient enough to the bait the suit while this appeal plaintiff wants the insurance money that's right that's right there's that the harm venti in your view is a certifying it is the delay additional delay and we're i think we're asking them the exact same question again i think if we asked them to now get down into the details of the facts of every case to tell us what property damage is is really what they refused to do in the dons building case they say that that's a factually intensive scenario that needs to be decided on a case by case basis so i don't know that we're accomplishing anything new by asking the court to tell us ok under the facts of this case the nail pierces the law or was that actual damage because it was damage to the property i don't think anybody can attest that it harmed the property it didn't make it any better by putting a nail through a concrete in that arming the building it's not an accident if you pick that and chose it intentionally you know maybe i went to the store and i picked a number thirty and thought it was number three and use that concrete and that was the problem i was an accident i thought i was picking up the right concrete i picked up the wrong concrete put it up and it's not there i concrete and that ultimately causes all of the the house to collapse and i think that's more like the v r v case where they put the wall d in the wall was bad but they put it in the exact way they intended to put it in they did their work they were not negligent in performing their work they were negligent and designing the wall to my hypo i'm i'm i'm the builder i'm negligent in picking up the wrong bucket of concrete i think i'm picking up the right one i think it says three when it says thirty because i want to say that and that's a mess for this kind of this kind of house let's just say and ultimately the whole house collapses down the road and there's a suit similar to this so where was the property damage so i don't know in that case the you have property damage because your contractor put in the wrong product that like putting in a defective retaining wall you put the wrong product in there but you did it right you didn't accidently mix it wrong put the wrong chemical compound into it you purchased a product and you put it in then use then one would what would be the situation there the scenario would be words the accident occur because the policy definition of occurrence is an accident and not you know and or that theory you wouldn't have needed this twenty years of manifestation and all that stuff because you you can't insure something that's not an accident i can't insure you for committing murder down the road ok that's just not the skin's public policy among other things so it's always insuring accidents i mean that's that's what insurance policies do right so i'm i'm still i why did we have twenty years of seeley's and probably more when i started going to him about this the don's building was trying to answer it it's just wasn't a defect in design versus the an accident in negligently putting constructing or whatever you want to call it so the manifestation issue that i think was around was the scenario word nobody ever knew that there was property damage they never found it they never discovered it and years and years go by and then the struggle is you have a claim that potentially occurred during a policy you have a strong insurance lobby at the legislature saying that we want these policies to say what they mean and mean what they say so that there is not undisclosed risk out there for both parties to the insurance contract and when the injury itself is not manifesting for years i believe are trying to figure out a way to to help the insured without crossing that line of trying to rewrite the policy itself because the the insurance polson become super feel as if you don't have any coverage just because you can't discover in two years down the road and i believe that's what don's building supply was trying to do is is make more of a bright line so that there aren't questions about whether it is or isn't a damage to the property and they're saying that the actual physical injury is is what has to occur during that policy period even if that actual physical injury would be exempted under j five or six you know which one because if they did file this my november two thousand and sixteen lawsuit that that's an easy one i don't think it makes it to the st circuit those so that the the actual physical injury can't be to your own work and i think that exclusion does pacifically say you can't harm your own work basically insure your work product that's not what the policy is trying so in this case why it's different is because we harm something else in the property when it was in the cubby you were in bangalore kind of speaks to the coby not to just i'm supposed to be building a wall but if the wall has wiring in it that's part of that group that's different from so if i'm working on the wing of a plane and then i cause the engine over here to blow that would be different but you're really parsing the siding if you're s over to some other part of the house and put a nail in a wire it's part of that particular part you're working on you know i guess it depends on how far down the drill i mean is it an inch away is it five feet away is it ten feet away to my colleagues but if they had put the nail in the wire left and that afternoon the house went down in flames that that particular part isn't the whole house i think that to me is very clear the part that i have trouble with i don't really understand you to be saying the wire wasn't part of that particular part and i'm sorry for misunderstanding your briefing on that that seems to me to just completely make the j exceptions meaningless because the idea is i'm working here in this country and what i'm working on here in this cubby is excluded and the wire was in that cubby if my client had been it and build it i think that would be correct but i don't know that that's the allegation the allegation is deciding was installed improperly and if i buy construction or installation sign my defense when defendants improperly hammer nails through electrical  so they send the dependents were installing the sobbing they didn't say the defendants were eating lunch over here and threw a cigarette into this corner and that somehow caused the problem right unfortunately  strictly construed against the insurer and they write the policies they can write it to say that it's broader right now it's that particular part and that particular part is the siding not the wiring and you know had have decided that's the actual policy itself it says also what case construes it the way you're considering it because the siding included the wiring in the wiring was in the siding so the wiring was in the wall the siding was on the outside of the house the nail it up they don't even look at the wire there even though the wires there because they can't see through the o s b board or whatever is outside and i guess the question is is how  far removed do you have to be to be away from that particular part and i think with the policy being strictly construed in an essentially this being a duty to and to defend at this point that that duty to defend was triggered because the allegations of the lawsuit specifically say the citing they don't talk about our client having the obligation to do the wiring and making it part of that exception but ultimately yes hiring wasn't done defectively it was that you're working on the siding and while you're working on that particular part you nail into the wire but i think that the allegation could be made the wiring was defective only installed because it was too close to the outside such that a nail could penetrate it should've been it should have potentially maybe been in conduit or something to prevent that from happening so there could be other negligence claims out there that are more developed as the cases litigated but the exclusion is tied to the your work which is a defined term in quotation marks and then your work is defined to mean work or operations performed by you or on your behalf and materials parts or equipment for initially in connection with such work or operations but there's no allegation that the wiring is a material part or equipment for mission support of installation of the siding is there job is defined by the policy and in the facts will have to essential be developed on that what exactly was he hired to do and how was he hired to do it because right now the place the complaint that were were balanced by looking at states that it was just deciding it doesn't state that he was required to do any of these other things that that ultimately might be part of that exception which is i think or a start of this in that those exceptions they fall more so into the indemnity category of what might be  back from this than whether they have a duty to defend the allegations asserted by this particular complaint as written and the four corners of the policy up there which would include judge we believe the wires he said they've said well in the v r v it was just designed a got the r v opinion right here on this circuit said each of the  occurred in two thousand and sixteen this is a separate day should click case liberty insurance they say that earlier here and so the damages they are suing for are only the damages from the fire that occurred on december going to have it we're going to have it so that was that was argued yesterday in the texas supreme court because they're trying to rely on extrinsic evidence here because if you look and again you know one of the things are saying is well piercing the piercing of the wire where in the pleading does it get a date that the wire piercing or there's nothing that says the wire piercing occurred during premises doing anything after the expiration of the policy i don't know how i know it apparently after the policy was cancelled it was and did not expire apparently he did not see fit to buy anymore that you can't have a duty to do that well the fact is we do have a specific allegation of december st and you go back to god one person's feel bad the church says that where there are allegations specific allegations we're not go all right jack and plants are oral argument we want to again thank judge payne in for serving alongside us and we want to thank you for your arguments the case is under submission the panel adjourns and we will resume under the regular order