those are the allegations ok in fact the word molestation is actually used in the complaint ok so then what doubt arises then when you compare the allegations in the complaint to the language of poles the question here is whether there were protests whether the prior known acts exclusion applies to consequently whether there was knowledge on the part looking at the complaint and comparing it to the policy right well that's what the four corners rule would say one should do just look at the complaint in compared to the policy but here this is a diversity action and we're going to apply new jersey and new jersey well has fundamentally rejected that approach it has rejected the pure four corners approach that's the s l industry's case and that case has been approved by the rd circuit must we resort to extra evidence we didn't i mean it may not be necessary in this case i think your honor that you must because the allegations of this complaint are so general and so unspecific that they do not provide a solid basis for invoking the exclusion remembering i mean the language that's an interesting  position right so some of the language used is known pedophile and child molester various acts of sexual molestation and or child abuse and abusive and or sexual conduct yes and in that regard your screen burger i believe that new jersey will which applies here and i look at the pro formants case as one example requires that he a carrier trying to invoke the exclusion has the burden of showing that the case for those within it and here to just get back to judge greenways question for a moment if i may when faced with allegations that don't turn on specific facts and by that i mean an allegation that person x or administration awaya or board members dizzy or we're almost station because they learned it in this fashion or that fish and i mean able to deal with that kind of specific allegation fans history and more specifically that there had been an agreement that they would not do so the trial court in that case upheld the agreement and the appellate division up held the trial disclose or publicize what it knew about fairness so in that sense yes but i think that the basis for the exclusion that is urged by the carrier and that i just mean all to be found to be applicable  was the allegation of specific acts of molestation and abuse of backs and to that we say were one to look even any english outside the that that that's true i mean in a sense they say that mark feels responsible because it should have they say created some body of knowledge that would have prevented cedar hill from employing this man but from my policy standpoint i believe it is the nature of what it is that when this is accused to have done that is being brought to bear to invoke the honor's quite right that the actual course of action against mark though in the underlying case had to do with a claim that it failed to sufficiently disclose what because of course is the one question why did you bring it up before and what should happen as a result of you not bringing up until the reply but then there's also the question of what's the universe of extr a lot but i have confidence that you'll be able thanks mike west bank you are right i will do my best the key events that comprise that universe or three separate occasions on which there was sit on his lap he was being too friendly to them he was holding their hands in one instance he allowed someone to touch his leg he was too friendly he was sending texts and in each case the allegations were which at root had to do with some sort of pedophilia were found by diouf is to be unfounded that's the state of knowledge that monaco had in two thousand and ten and is your argument that you can't describe the thoughts and knowledge that the various parents transmitted to the school district because there's no specificity as to who specifically learned it you know it's really something different from that it is that the conduct that was being conveyed to m  the traditional definition of molestation and would not in other than the conclusory fashion pleaded in the complaint constitute abuse of facts abusive facts in the conclusion that the allegations were unfounded and then there is the body of knowledge no one has shown in this case it's not even alleged with specificity that anybody at mont will have any specific information about issues station that would have risen to a level that would have required reporting so when we look at what happened here the questions for us or as someone once said what did they know and when did they know it it was correct because it was based on the holdings of s l industries follow the principles espoused in that case and reviewed but rejected the extrinsic evidence cited to by mark bill because it did nothing to change it absolutely goes to their knowledge but the principle of s l industries which is the foundation of month bills appeal is that a denial of liability i e whether or not mark bill had knowledge and whether it had knowledge only of appropriate conduct inappropriate conduct versus mala station is not the issue on a coverage determination the issue on a duty to defend is whether the allegations potentially bring the claim really does not dispute that the claim come within the ensuring grant the answer to your question is that in our disclaimer we reserved rights on whether or not the grant of coverage was satisfied but then disclaimed fully on the exclusion so i cannot concede for today's purposes that the claims as alleged by child m fall within the coverage grant but i'm here to argue about the applicability of the exclusion ok so if there is a potential for indemnity coverage there's likely a duty to defend if you look at those allegations and there is no pope tensional for indemnity coverage there is no duty to defend however s l industries talks about minute if you will or an exception to the four corners rule that says if there is information outside of the complaint true but unplayed it facts that would change the character a plaintiff's or claimants claims such as to potentially bring them with in the coverage grant those facts may not be ignored so in this case the facts we submit that the extrinsic evidence that is being put forth by are the dicus reports and the conclusions that the reports or the complaints are unfounded what does that say that says and supports what monfils argument is that we didn't know about abuse of x until he was indicted in two thousand and twelve i think it was we didn't know all we knew was that there were these complaints of inappropriate conduct a denial that that's an issue that goes to the underlying liability those two together that michael didn't know right that's you well i think what you're saying is not just looking at the davis conclusions but looking at what actually was found by the appellate division to have gone on that we l industries it's a very different situation than we had here and although the court below abided by the principles there the information that the court looked to in s l industries was a complaint for wrongful termination with no claim of bodily injury and in that case the insurance company said no duty to defend there's no beyond our policies not triggered after considered within extreme together yeah we think that in our brief your honor and certainly additional extrinsic information the further supports child and allegations of abuse of acts yes what is there any argument that you could and the reason it is the occult vision is pretty clear when it lays out what montvale knew and when it knew it it talks about what it knew as two thousand and five it talks about the reports that were made as a result of what it learned in two thousand and eight and then again more complaints by parents and grandparents and staff members leading to a nd report to die fists in two thousand and nine all of this and further information in two thousand  this was at the heart of this there is no question that knowledge was had by mark bill and by the way the defendants in the underlying action it's the board of education it's the school and it's i can't but if you look at the cases which i'm sure you have that we cited by the new jersey appellate division in germantown and state farm v gregory both both sexual molestation cases the defense to coverage was well wait a nd the high school student here who was the abuser he pointed to a police report and said there is some allusion that it alludes to the fact that this wasn't right but the victim consented there is deposition testimony here that suggest by the victim herself that perhaps she consented because they were previously boyfriend and girlfriend and with the court in germantown said was we're not here to decide the liability it's clear that the liability case is not one sided but when looking at the coverage of this case we're here to look at the claims and the claims against you high school student or that you intentionally will that you ra this other high school student no coverage if i may one more your honor in state farm being gregory a husband was engaged in child abuse he and his wife were sued in a civil action for the abuse and the allegation against the wife was you know what your husband was doing you know he was a pedophile you knew he had  to do this on the coverage case the wife argued so no no coverage for the husband and the wife argue wait a nd i'm in a different position dear i didn't know i didn't know what my husband was doing i didn't know he had a propensity and in the coverage case what the court said in response to that which is not very different than what we're hearing today or was sharleen the wife's argument is that she should not have been denied coverage because she denies knowledge of her husband's alleged propensities the court says whether her assertions are true or not and whether the victim's allegations are true or not have no bearing on the coverage issues raised in this case coverage does not turn on whether the injured person can ultimately prove his or her allegations but whether the allegations fall within the coverage defined by the policy this is precisely what what is before the court today and i should add that this is the nd bite at the apple that michael has here there have been a series of decisions in this case and one of them was a motion for reconsideration when they lost on the g l section of the policy and in that motion for reconsideration not bill brought to the court's attention a sealed document which was a dicus report and conclusions right around the time or immedia four corners rule under s l was ok i'm going to look at that extrinsic evidence but the same thing it says here because it's pretty much the same information that mom feels taking a shot at again that exception to the four corners rule said the court below meaning looking at extensive evidence is to be distinguished from the defendant insured simply saying that it will prevail on the merits and thereby negate some exclusion that  that the rd party complaint by child and is in big us our position is that the specific words that are used in that complaint are the same words that are used in zurich's abusive act exclusion sexual abuse sexual conduct molestation child abuse that the the exclusion in policy talks specifically to my list station or abuse including sexual have to give them coverage if there is extensive evidence that would bring the claim within the coverage grant your honor yes so industry speaks to justice  let me hear just two things one the position that was taken by the district court and frankly the position that was taken  in one short sentence in zurich's brief to this court and it is this one monfils assertion that it did not know finnis was abusing students while he was a teacher at mont bill is assertion that it did not know fitness was abusing students while he was a teacher mon phil is immaterial to the question of whether the prior known x exclusion applies and that's in the joint appendix of pages forty two dollars forty three  that district that portion of the district court opinion that's a bitter pill for any insurer to swallow and especially for a public insured such as a board of education when they believe they have real information and real defenses and don't find any forum to express them and i think that judge greenberg hit the nail on the head when he said that before we reached the question indemnity we reached the question of defense and if the very least what should have happened here given the circumstances is that your should have tendered the defense where it went after that might be subject to the facts that developed but it is it is hard to to accept as the insured remembering all the indulgences that the jersey courts give to coverage it's hard to accept that one might be able to disprove the allegations of the complaint when the case but still have no coverage i don't think that that's a just allegations in the complaint some speak to you know the critical issue there i think there are components of it i don't think that they're the whole story didn't just say in any kind of naked fashion provide coverage because these allegations aren't true they showed that is that irrelevant right yeah well  suppose but but oh i don't think that that would be irrelevant under s l so long as there was something mancow could point to and here remembering that this was a motion for summary judgment remembering the burdens of proof and i believe this court's review at this point is plenary there when it has been no determination as to whether michael's position was accurate or inaccurate and