before the court this morning except for the ruling that h b fuller satisfies the self insured retention by payment of a single one hundred thousand dollar retention ruling that there is but one occurrence the district court states if minnesota courts were presented with this case it would determine the number of occurrences by looking at the underlying cause and then help the cause a singular continuous manufacture of as  as containing materials thus one occurrence the district court's ruling is wrong minnesota courts have been presented were uninsured six coverage for claimants alleging injury from exposure to a formulated manufactured product which contains a harmful chemical substance minnesota courts have rejected the ruling here that there is one occurrence and that the event is the manufacture the minnesota court of appeals and in raised silicone implant insurance coverage litigation reversed the trial court's ruling treating as one occurrence the manufacture of breast implants from which multiple claimants on damages from the manufacture where multiple claimants are injured by exposure to a formulated product for each complainant that injured there is an occurrence no minnesota court has held to the contrary since re silicone implant in the intervening years and as set out in our brief at page thirty six such was the same holding in february two thousand and four by the state court judge assigned in minnesota to handle insurance coverage disputes for as best this injury claims if this case were in the minnesota state court there would not be the ruling that there is one occurrence all of the cases on which age before  realize the minnesota court decisions and federal court decisions purportedly applying minnesota law were all decided before the minnesota court of appeals so ruled in the in re silicone implant insurance coverage litigation case the district court relied on an n s p which involved continuous pollution contamination at a particular geographic site with a single claimant  which was treated as one occurrence given the facts in an s p it would be hard pressed to reach a different result you have one claimant who is seeking a recovery of damages due to the continual discharge of contaminants into the site the supreme court in determining the number of occurrence also looked at the injury the continuous oil and water contamination if the decisions the timing of the decisions were reversed so let's say in re silicone was decided before an s p you'd have exactly the same ruling as an s p i mean an s p is again a single claimant one site continuous pollution contamination discharge in the n s p case the minnesota supreme court mentions in passing the agent orange apply and you know royal you were dealing with the sale of herbicides to one party which was the united states military the new york court did not hold that the manufacture of the dioxin contaminated herbicides was the occurrence rather the occurrence they held was the delivery to the military the single purchaser in large part the new york court how that was ruling as it p the court mentions the unique nature of the circumstances before it in any event the minnesota court of appeals when it was addressing the issue of the number of occurrence was well aware of the n p case and ruled as it did moreover if it was the intent that only as best as claims would be one occurrence the policy would have been written and to be provide for just one hundred thousand self insured retention versus the perp koreans language which would simply be unnecessary if that is the way it's construed now because of the district court ruling that somehow there was only one occurrence it did not address whether appellant could somehow be bound by the fuller and national settlement agreement the answer to the question that question is to get is now down the district court correctly ruled by its fine its very nature and the terms of appellants policy its coverage is not triggered until the underlying primary polic exhausted according to its terms and the national union primary policy is not even triggered until fuller's ensured retention of one hundred thousand per currency is exhausted national unions and fallers settlement agreement does not bind a pal and in their brief the respondent talks about the follow the fortune doctrine based on reinsurance agreements this is not a reinsurance situation minnesota's never apply the follow the fortunes doctrine and where you see that being applied even in the reinsurance context it is based on the terms of the contract there is no such terms here each argument that any such argument that somehow change is bound is also contrary to condition  the parties tethered appellants coverage obligations to the satisfaction of full or to the terms of the national union policy so what we're asking this court this morning is reversal of records denial of partial summary judgment and its ruling that there is one occurrence with the one occurrence being the manufacture versus there are multiple occurrences with  recurrence being each claimants exposure subject to the one hundred thousand dollar each occurrence limit so we're asking if this is a court reversed and so ru lonergan representing h p filter company i'm first going to address the number of occurrences issue and then we'll move on to the insolvent years issue the parties have present of the court with just two stark alternatives here and i think it's important to note that and the first one is to affirm judge to hymes ruling that under the facts of this case the decision to manufacture and release into the stream of commerce  raised the question of there could be other causes or other districts have found a different cause there was no evidence of any other cause presented here so those are the two alternatives that the parties have presented to the court and p is the only minnesota supreme court case that is on point in this matter and p was an environmental case in which the n s p was attempting to argue that there was a single cause of the injury and in that case the court found that the car was released into the stream of commerce of asian or they mention that the second circuit didn't follow agent orange but what is important here is that the n s p court did and no minnesota supreme court since that time has ruled otherwise no one in minnesota no district court or minnesota for the supreme court has rejected agent orange but in that case again the court didn't find that the insured had proved that there was a single car but the analysis of the court shows that the damn tar court of appeals felt there was that was the task here they said a discharge but here here you have is the district court they get a factual determination that it was one continuous matter or which is a little hard to or i mean everybody seems to argue this is a little more of a legal argument and how you interpret that's what that was the point of my opening remarks your honor there's been no evidence of anything else here the continuous conduct this was a rule fifty six motion they have the obligation at that point time to provide the evidence to rebut h b fuller's evidence and they did not put anything forward so if if the court is all so it just simply doesn't address the n s p situation tigger makes much of the fact that there are multiple plaintiffs here there were not an amnesty but i think it might be helpful to the court think about it this way if one driver causes a crash and there are many plaintiffs so there's a single crash multiple pointers i think most people would say there was a single accident if there's the same point of is injured in two different car accident we would say there are two accidents that that common sense example tells you that like the courts in this case and it's been otherwise you're really focused on the conduct of the person accused of how many of the accident how many accidents were there on this case there was one decision to manufacture it is the majority rule and to apply the cost test and this court in the cargill case which the minnesota cases that are directly on point support judge tonight's decision wowser a case not even mentioned by mistake hunt is also important here they have made how you determine what constitutes an occurrence and they did so because of all the confusion in the various minnesota appellate decisions about what that means in that case the court that the word accident encompasses both the the insured and the consequences of the insureds act and in that case that was the case where the boys were playing basketball one went up to dunk one wrapped his leg he fell and hurt his finger so you had conduct of the insured the pulling of the way the consequences of that fall and then you have the injury and if you read the court's opinion what they were focused on was the ensure the nature of the insurance conduct they said whether there's an accident depends on whether the insured intended to conduct poing the life and also whether they intended the harm but again in that case the focus is on the insured conduct not on the exposure or the injury of the plant and so walser support to our judge who harms a decision and it is the most recent minnesota supreme court case and the question of what constitutes an occurrence it's not in this context but it's it is intended to be the minnesota supreme court articulation of what the standard is in minnesota the policy language also supports the judge ten times decision it says accident that results in bodily injury and as many of the cases have that it tells you that there's a distinction between the accident and the injury and to have liability you have to have injury the accident is not the injury and so many cases interpreting this in the majority of cases found in the cars test look to that language to say it is but you have to look to the cause of the injury likewise per current they've made an argument that per must mean there can be more than one occurrence but in endorsement number three to the national new policy with a slight retention fourth they talk about they don't use the word per person if they'd wanted to say it was fifty thousand one hundred thousand dollars per plaintiff they should have said per person per person is a normal insurance terminology used to denote limits and retention that apply to each individual point if they did not use that word here finally i want to just turn to the reasonable person in the position of the insured understand the language to be to me here this was a retention that shows there was an expectation that there would be coverage for us but it's not exclusion it was a retention that clearly showed that there was an intent to cover his claims and the tigger thirty six representative said in his deposition s take had indicated we believe that  every current and by the definition you've got thousands of occurrences here now under minnesota law we don't see how that sci are would ever have been exhausted that's written in the national policy tigs representative at minute in this deposition that were their interpretation to be expected there would never be insurance coverage under the national union and there would never be insurance coverage under the international policy any reasonable insured in the i'd like to turn to the kurds i would disagree ron or because for two reasons one you have to focus on the insurance liability in other words what's the basis for liability it really is the decision just want to caress yes your honor i really if you if you read the cases carefully if you look at for instance the the kargil case there was a formula it could have could have entered any number of people and under the kargil decision it would be one occurrence but one moreover your honor if you if you think about what happens after the car leaves the plant there are all sorts of things that can happen but suppose defective breaks and the reason that someone is in an injury is because the person in front of them does something they shouldn't have done and there's an accident and there's a small contribution by the brak if the occurrence really is not the situation where the eight the insured had no control over it full or had a full or here had no control over how the products were used once it left plant and in the same situation  occurs in the accident context we're talking about brakes fuller doesn't control of that scenario and so when you're looking at what the insurance liability is on this is liability insurance you really have to go back to the the place in time where the conduct of the insured took place and so here that conduct was the decision to manufacture containing products and i think it's important to note that this is an allocation issue not a trigger issue and i'm sure the courts for miller with allocation but really it's helpful to remember that first you have to determine whether a policy is implicated at all  court did not know why the insured didn't have insurance after two thousand and two and so what it did was to set up a principle for the the court on remained to consider and the court said we'd therefore conclude that the total period over which liability is allocated must include any times during which damage occurred but would deal was voluntarily self insured that's the focus of the court's decision because it didn't know why it wasn't because it was the all these carriers were approved do business in the states in which they were doing business including minnesota and insurance commissioner had to review the financial statements of the commissioners in a much better position and fuller to determine the financial capacity of those carriers and they approved it but more importantly you have to go back to the concept that this is an allocation issue not a trigger issue and minnesota has said that once an insurance company's policy has been triggered the question of how much it pays allocation is a flexible concept and for instance an n s p they decided we were going to prove they were going to prorate it equally across all policy years but not all damage took place in our policy years is not equally distributed we know that from the fact in one nine hundred twenty eight when n s p began using the site and in one nine hundred thirty three when it began using the adjacent site it didn't immediately dump all the product that later leached into the groundwater it took a long time it used the sites it disposed of a product and progressive li the amount of contaminants reaching into the groundwater increased over time there was not an equal distribution of damages nonetheless minnesota applying its flexible outpatient principles made it clear that you can in fact require an insurance company to pay more than it more than the exact amount of damage that he placed in house and if you look at the at the the wood dale decision even if we are swimming is just limited to market availability still under that concept you follow a different rule is determined by looking at essentially the impact on the insured in m s p the reason they did it the way they did it was because as a matter of public policy be too difficult to expect the insured to farfetched if you look at the policy language what the policy language says is the insurance companies are responsible for all for which the insured is liable in other words if not their own policy language allows that kind of an allocation under that scenario or let's assume that one that solvent is the one after ten years why would anybody go on a risk where they know that their insurance that the company built before them might have questionable solvent say how do you even get insurance because that new company would maybe be picking up ten years of risk when they could write a policy that clearly so they wouldn't pick it up which they did not used and so they could have done that here and just so the court understands there are many states in the country which require which allow the insured under that also comes language to pick one policy or and expect that that policy or respond in total to any claim that triggers their policy even if there are other policy years that are also triggered so it's not unreasonable and it's not out of the realm of the expectations of the insurance companies there it is your own and i'm not saying otherwise but over time as the court has realized the impact of the ruling on the insurance they have throttle they have basically come back from that and  in the direction that minnesota courts are going without resort of course doing battle just trying to guess where they are you tell me where we're in a situation we have to take what they have on the in voluntarily self insured only if they are voluntarily self insured and while it didn't include it didn't absolutely include an insolvent context the court didn't know what the real context was and announced that principle and directed the just the truck court follow it to me that's clear direction that if the insured is not voluntarily insured where as here we're full of paid hundreds of thousands of dollars of premiums and bought millions and millions of dollars worth of insurance coverage that reserved a few more moments to talk about the occurrence issue for the key i g insurance company so i'm speaking solely on the allocation issue at this point in our view as you know we believe judge time tar in this court's decision of course in diocese of wynonna and it was rejected as well in what dale then i'm going to talk about whether this court should create a new exception that minnesota has not for the policyholders judge one harms ruling was that ordinary principles of pro rata allocation as explained by the minnesota supreme court applied here and therefore the allocation period included all the periods in which injury took place including the periods in one thousand eight hundred nine hundred eighty four and it included an allocation to all the risk bearers in the year there are two pieces of the allocation puzzle one when did injury occur each insurer pays for injury during its policy period its minnesota supreme court no insurer pays for injury outside the period  elect when it went about to buy insurance to choose the wrong insurer one that turned out to be financially unstable as it turned out the insurer nine hundred seventy five nine has no control over that decision what was the holding of the wood dale case well the holding of the wood l case is not obscure it is exactly as described in the case itself the court said the court said and i'm going to quote so little it down on my page here the court said on appeal would dale claims that it was on able to purchase water intrusion insurance after november of two thousand and two we hold that henri man it would they all establishes that no water insurance coverage what's available to it at the november two thousand two the total period over which liability was allocated and that two thousand and two of bailable to it they couldn't purchase it this is called the on of they'll ability exception and what refers to is the transfer of risk just to point it out further that this is would dale's holding the court further describes it later says the issue is the period over which th damages are to be allocated excludes periods during which the insured lacked coverage because no such coverage was available so it is clear as day as a matter of the holding of that case that they were invoking the un availability exception as it had previously been discussed in the stonewall case which is that we will exclude periods during which insurance was categor unavailable on the market place and that's all that was held the quote here is to the word voluntary and that is taken clearly out of context to voluntarily self insured word here was a distinction the court simply made it was simply saying what else says there was no insurance vailable to it and thus the issue was well or did it voluntarily not buy the insurance that was the only context in works and the word voluntary was used in that context so the holding of would l does not help at all should the court create a new exception the answer is no there insolvency exception why because we know from the basic principles of minnesota law how this is to be worked out there are two issues as i said the first they look at the terms of the insurance policy insurers are liable for injury during their policy period not injury outside their policy period that's covered by some other inch or in some different year the second issue you look at fuller's the primary risk here this is an ordinary allocation case there are insurers that assume the risk for the periods one thousand nine hundred eighty through eighty four under the policies they issued t fuller so we're not really dealing with self insured issue which is what will or says or holland terry self insurance you're dealing with allocation among insurance companies and then you say to yourself well one of those insurance companies is unwilling to pay or are not able to pay is not just and well it can pay it could pay a partial who picks up the difference and the risk is clearly on full or when it is buying the insurance to make the proper choice and that the cases are absolutely uniform every court in every jurisdiction to consider this issue has determined that the policy holder is the only one that could fairly bear the risk when it is buying insurance it chooses the policy terms it chooses the premium it wants to pay it chooses who it wants to do business with presumably a large company in the company of its broker is making an intelligent judgment against who with whom it wants to do business we know from the advertisements on t v when insurance companies are selling themselves they're selling their reputation and here fuller chose not to buy insurance policies from our clients for those years but from somebody else and it is kind of perverse in our market system to say well i'm not going to pay you the preview at that price i'm going to buy it from someone else and if they fail i could still collect against you yet that is exactly the argument that is being made here it is not an appropriate shifting of the risk for an insurance company in one year that has not agreed to assume the risk to take on the responsibility for the ongoing insolvency of another insurance company under their insurance policies that's not how it works fuller could decide who it wanted to buy insurance from it could have decided to buy more insurance in those years it could have decided to buy dropdown insurance in those years it has those options the one thing we know for sure is that an insurance company in one nine hundred seventy nine  appropriate bearer of the risk and that indeed is the foundation of the wood dale what's called the on availability exception which says when you can't transfer risk  the allocation system doesn't work and that's why we have this on availability exception of the stonewall and several other jurisdictions in all these cases this court can look to those what is really a wel different foundation we sometimes see that where you have a duty to provide a defense you can come up with a different rule and it's thank you because michael they have any time  that with regard to the number of occurrences court does not need to guess what minnesota law what minnesota courts would do under these circumstances the minnesota court of appeals is  clear it's in accord with the minnesota supreme court's decisions and it's being followed to date is most recently in two thousand and fourteen february two thousand and fourteen in the specialist injury coverage litigation that's been assigned to one state court judge in minnesota no fuller has the burden of proof to satisfy that it meets the self insured retention it was fuller who decided to make the argument in the small argument that the idea that the manufacture that there is one occurrence and it's the manufacture that is directly contrary to what the minnesota courts have ruled the minnesota courts have ruled that it is not the manufacturer but rather it is the exposure with the resulting injury that is the occurrence i heard on each b fuller's cancel this morning say that while n s p was based on that on discharge and that's true it was based on discharge of contaminants into one site one occurrence fear we've got h p fuller manufacturing a multitude of products under product line that are going out where there's people being exposed to different times different places different circumstances and under those circumstances the exposure is each an occurrence that's what the minnesota courts have held in the silicone implant litigation there is nothing to the contrary on that and so based on minnesota law as applied to the exact fact pattern that's before this court judge tun haim had it wrong and the judge townhome should be reversed on the determination that there was only one occurrence thank you  course thank you very much