r that argument for two reasons number one because in one instance there's a limitation to direct physical loss or damage and only intangible property can sustain direct physical loss or damage cover property ok and the point i was trying to make is that it's my understanding that travel is this thing because intangible property cannot stop for a person standing direct physical loss or damage the policy is limited for some period of time so you can't really minish the value so then you have to project that on  calculate their damages under under two different scenarios number one when the loss of business income was included and under another one when it was not and that  good afternoon your honour's there is nothing in this policy to indicate that it's intended to cover intangible property rights in fact everything in the policy strongly suggests that it's intended to on the left hand column under number six additional coverages number a employee dishonesty says we will pay for loss of or damage to business personal property resulting directly from employee dishonesty business personal property defined on the first page of the policy which is page one thirty in the excerpts of record ok yes located in or on the buildings described in the declarations or in the open or in a vehicle within one hundred feet of the described premises so it has to have a physical location on the premises or within a hundred the value of that is the cost of replacing the material the disk itself which is going to the most and the labor required to duplicate the information on the disk and it specifically provides that  page one thirty seven of the and down at the bottom right hand corner it says your business personal property insurance is extended to apply to your costs to research replace or resource a lost information on lost or damaged valuable papers and records including those which exist on electronic or magnetic media for which duplicates do not exist in this case so what they're saying is will replace the the disk and wilbur duplicate the information for you will pay for the labor required to duplicate the information in this case they didn't lose the actual information the actual information as they have agreed in stipulated was always on their premises all they lost was  confidentiality the exclusivity of it and the policy specifically addresses what happens when valuable information is lost and all that is to cover for that is the cost of replacing the information it also has  an exclusion for any consequential loss which in this circumstance read together with the requirement or the provision that it will pay to restore the lost information makes it pretty clear that they're not going to pay for the consequences of losing the information they're not going to pay for loss of market which is another exclusion we relied on they're not going to pay for anything being at a profit loss competition to evaluate what they're going to  those are the exclusions on page one thirty nine the exclusions exclusion be so that we will not pay for loss or damage caused by or resulting from any of the following and one of them is delay loss of use or loss of market and then on the next page which section of that's page one thirty nine of the ex bottom part of the right hand column two to be lucky for loss of damage caused by resulting from loss of market and then there's a similar exclusion  what we're talking about here is if the papers have that had customer lists and so on them were stolen then the cost of the paper would be covered the cost of recreating the customer list would be covered the confidentiality of that paper is not covered exclusivity of the trade secrets wasn't kept anywhere that's what they lost we know that from the avery dennison case this court decided last year that the the what is lost in this kind of situation is not the paper that has the trade secrets and certainly in this case they admitted it was in the paper it's not any physical embodiment of the trade secrets it's the exclusivity of the information and that's what was lost and that's what they're making the claim for and that doesn't have any physical location someone's you know has a policy that covers theft of trade secrets which this does not that that's obviously a very important thing for coca cola i would assume that they have made the effort to get coverage for that specific thing this policy is designed to cover citing case of saying well for tax purposes intangibles have to be assigned a location and that's true they have to be assigned a location for tax purposes what we're doing here is not a situation where we have to assign a location to these things we're looking at whether this policy was intended to cover it whether it would be reasonably understood to cover it and when you're talking about a policy that requires a physical location for the property for it to be covered and that it has to be physically located on the premises or in the premises in the premises or on the premises or within a hundred feet of the premises you're talking about something that has to have some physical being that's the obvious intent of that the only reason that it's done in the in the tax case is because somebody has to pay tax on it and so there's a requirement that it be that it be taxed and in fact a couple of the cases they've cited say things like the oakland raiders case as an intangible has no physical characteristics that would serve as a basis for assigning it to a particular locality and that's the case here the mercantile guarantee chase says intangible property or property rights in the strict sense of physical location can have no real domicile or situs so in the tax cases where it is legally required that there be a legal location the courts will impute and assign a legal location there's no need to do that here what we're doing here is not finding something that has to have some kind of legal location we're trying to decide whether this is something that would be intended to be covered under this policy and in fact because the the business personal property definition requires that it be located on the premises the exclusivity of knowledge is not something that can be physically look at on the premises again i'd like to get to the issue of  direct physical loss the way the policy is set up is if you turn to page one hundred thirty of the excerpts there's coverage a is a sets forth what is covered and underneath that there's a number one which has more detail about certain things number two has more detail about what's not covered number three has detail about business income four five six and seven all have additional detail  underneath that initial definition of what is covered and and what is covered if you turn back to page one thirty says we will pay for direct physical loss of or damage to covered property at the premises caused by resulting from a covered cause of loss and so the rest of the sections are simply explaining or adding detail to how that works in sixty the employee dishonesty provision that we've been talking about is it explains under what circumstances that are employed dishonesty will be covered because there's an exclusion for theft and then there's an exception to that for things that are within the scope of this employee dishonesty provision and so that's what the purpose of that is it's not to expand the scope of coverage when you have employee dishonesty it's to define the exceptions to the exclusion for that and it and it deals with things like whether they're still an employer or not whether coverage of that employee was  cancelled whether it was discovered within one year from the end of the policy period what the limit of coverage might be if there is an employee dishonesty claim so it treats employee dishonesty claims with certain different things as set forth there it doesn't say there that the requirement of a direct physical loss does not apply it just doesn't address that one where the other just as the paper loss or damage to business personal property resulting from employee dishonesty so we the way you look at it that this is a subset of the main coverage direct physical loss or the definition of business personal property which requires a physical location and a policy is obviously intended to apply only to apply to property that has physical characteristics and not to intangibles there's absolutely nothing in it that s intangibles in fact and one other provision i'd like to point to if there's anything that ever could be considered an intangible that you would think you might be covered it's money you think that somebody is somehow embezzling money and intangibles are going to be covered then that would be fine here but if you turn to page one forty nine of the policy of the it to find money as currency and coins in current use banknotes traveler's checks register checks and when he orders does not include just the value of money apart from its physical embodiment so there's absolutely nothing in the policy to suggest that any kind of intangible is covered in fact everything else points to it applying only to tangible property the point of this making this argument because it does not have the word tangible in the policy but there's a long line of cases that just because of a provision could have been written more specifically to the case at hand doesn't mean that you then can drive a truck through at all and say well it's ambiguous and will interpret it to find coverage