i understand that everyone is here at least on the first three cases so we will proceed with the first case mouser oliver says america mutual insurance district court made an error when it dismissed at the motion to dismiss stage them as a relative's complaint there were several errors that were made with this decision in the first instance determined that the mazza rose did not plead a loss that would entitle them to coverage clearly based upon rule eight the face of the  heard in its decision in a holding them as a rollo's to an improper standard because what the court said during oral argument exclusion and specifically during the hearing the court stated you haven't gone into enough detail to remove it from the exclusions that seemingly apply on their face and to be plausible to be appalled book claim he and let me ask you this yes yes lesion is incredibly broad it seems to cover water and all forms of water so the and the complaint alleges damage caused by water and oxygen infiltration and rainwater how does not not fit within that that incredibly broad definition of water surface water ground water seepage all kinds of water that's correct so once once we've established the loss then the burden shifts to make up and i think there may be a problem on on the puts finding about direct loss but what i'm concerned about the exclusion for water ok and also the other other exclusions as well but primarily the water the what the complaint alleges is that there was a chemical process where you had water and oxygen combining with the sulfate to to said and as alleged the water came from of a number of places it came for it could be subsurface water it could be more sugar in the air it could be surface water it could even be odyssey excludes loss from surface water from water below ground why is that not covered by the exclusion right because what we're claiming is if you have an official cause we're not claiming that the water caused the damage it's not the water the cause the damage if we had only water and we had water seeping whether it's subsurface water whether it's why sure whether it's surface water we wouldn't have the problem that we have the water is a reagent to the process the claim is not that it was the water if it was only water then we wouldn't have an issue it's the water that combines with the oxygen and the salt for that creates a chemical process solvers part of the the fire in concrete yes and of the water in the oxygen is combined with something that's in her in the concrete foundation to have to create a chemical process which then causes the damage yes that covered by one of the we contend no because we contend that the law is that it has to be an unambiguous exclusion and we have to afford the plain meaning to the words so when you look at the that apply to exclude insurance coverage in this situation what about the language that says water loss cost directly or indirectly regardless of any other cause or event contributing concord going or in any sequence to the last does not take away your your argument about com combining the chemical processes such as long as water plays a part i don't believe so because when you look at the exclusion and you talk about the definition of water the policy says water means flood a soft surface warda waves tidal wave tsu that's the general sense of water the exclusion can apply when water is the regent it's it's not the water that caused the harm because we wouldn't have a situation at all if it was only definitions of the without the water you don't have the rusting you have the reaction with the the substance in the concrete the water's essential to the process which causes the damage so i don't know i could say it's not it's not the water the water what drives the oxidation because the water is one of the elements it's juries so each other is a part of the process it causes the injury without the presence of the water there's no injury right it's if the water had gotten into the concrete the concrete would never reacted and the concrete then would have crumbled and cause the damage to the foundation that you assert but the allegation in the complaint is not that the water caused it it was the chemical reaction there's no reaction i don't understand you it's similar to the federal case your honor where the court there said where there was an exclusion for the pollution exclusion expert concluded that the water contributed to the chemical reaction it was the amicus expert your honor that had came out and analyzed the foundation and do you dispute that that that under your theory your client's theory of damage that the water contributed to the chemical reaction no when the experts found that it was exactly as we've stated it was a combination and it excluded then under this language i mean i don't understand what the point the policy is but that's a different question because as we've alleged it once we allege the loss and then we allege that it was the chemical process that caused it then we look at certainly at the motion to dismiss stage we've alleged enough what we're arguing at the motion to dismiss stage is whether it's water or whether it's a chemical reaction process and we believe that's the era ari thank you i have some time for ok thank you good morning your honour's chris riley sloan a walsh for the defendant happily i make a mutual insurance company this is a home owner's insurance policy that is around yes it's hard for me to understand what the point of the policy is this if it doesn't cover this kind of is it says we're going to cover you for any property damage you suffer from any risk unless it's a non for two of us losses what they're getting too and none for two is meaning it's caused by a long term deterioration or it's caused by some act negligence by a person or in the construction of a building or some act of god like tidal waves and tsunamis but what we're covering is fires a tree falls in your house when damage to your to your building and so the ocean so i do have to deal with that i'm going to flood zone but there is you know there's flood part policies you can purchase there are state mandates are state controlled insurance agencies for high risk locations in massachusetts for instance there's an agency that if you have property on the insurance you know normal homeowners policies are not going to cover those because the risk is too high but there are governmental insurance agenc but the reason you know we talk about the brief and we list you know there's the water exclusion there's the property quality of property destroyed self to tear ration all of those things are trying to say we're giving you an all ris k but we're covering for today's losses and so they're really versions of essentially two broader exclusions long term wear and tear and faulty workmanship or maintenance in the building of the  number of things here the allegations are there's water underneath the ground going into the concrete basement presumably that's been happening over a number of years since the home was built in one thousand nine hundred two and getting back to the idea  physical part of the concrete that could react that suddenly but there is no deterioration that happen suddenly with respect to the to the pleading issue understand the express some skepticism i just would like to point out that it's in the context of this case where what happened in this case was there was a regional compl physical lost in the england case tangible physical alteration of property and and the damage here when that tangible physical loss we don't know and the reason why it's important is they say what more should residence including cracking crumbling and discoloration and concrete which falls right into an exclusion they go on to say cracking heaving and separation of floor tiles also in the exclusion warping and racking of windows and doors and separation of chimneys from the residence and the reason that that i believe judge underhill ruled on the ground is saying this is a direct physical loss because it's a direct physical loss that is exactly the legal conclusion couch is a fact more than that it's a that again because it's a fortuity concept if for instance there are cases the england case that's in the brief one of the complaints said we're claiming that the direct physical loss is the chemical reaction we're saying that is the physical loss and the court ruled well that's not a physical alteration of property you could argue that's a cause of losses it's excluded and so if you don't require more than just saying we had a direct physical loss or you don't require more than just saying property damage to part a b and history of this claim where there was a first amended complaint there was there was a regional point first amended complaint judge underhill said at the hearing on the motion to dismiss the first amended complaint i'm giving you an opportunity to come back and cross that line from possibility to plausibility the second amended complaint repeated the same allegations with respect to property damage and in the decision that we're here on today judge underhill said i'm giving you a third opportunity a fourth bite of the apple to come back and tell me what is the actual damage you're claiming because i know you're talking about the chimney and the windows i'm telling you that i believe that the damage to the concrete foundation is excluded and you know judge underhill was saying i'm i've know this case concrete that's excluded as well so it's really which it wherever they want to say the efficient proximate causes are the cause of the losses it falls into an exclusion because this is not to his loss it's not the type of loss that supposed to be covered you what's important about this case and critical to the appeal is the stage that we're at we believe that we've established a loss once that lawsuit is gree the policy covers for two it is losses that's the intent that's the intent and did you allege for to its loss yes we also we allege a direct loss under the policy that would be covered when we look at to be allegations s well i think different than a tree you know i was telling my clerks homeowners don't always wonder they're sitting there in the middle of night wondering whether they're covered or not and i remember sitting through an ice storm in  so if i had sued by if i had to sue my insurance company would have said the tree had the house and broke the windows because of damage to the home for two years was this doesn't tell us anything about how the injury occurs it just kind of summarily says i was it does because not i'm not i'm not i'm using example i'm not trying to yes it does because when you read the complaint and you look at what's alleged the direct losses those losses should be covered and why it's more to it is is because when you look at and read the plain language of the exclusion we talk about deterioration said link shrinking bulging of the  what that means that means as a foundation as it ages i hope we've all seen a hundred year foundation that's not covered that's not what's expected what we have here is an ounce of being a few days or did it take years for this process to occur this process general and the commissioner of insurance to investigate these homes and the conduct of the insurance companies for unfair trade practices but the point is if it is a fortuitous loss we're not talking about normal wear and tear we're not talking about we're not talking about the theory ration we're not talking about the bulge and what we're talking about and what's alleged in the complaint is a chemical process that chemical process is the efficient cause it set everything else in motion i will conclude by suggesting that this is the exact reason that you have insurance the losses that are suffered this is why there is insurance this is the in equities here to allow the insurance companies in this very lengthy unilateral insurance contract where we're arguing subtleties and difficult to get difficult definitions and exclusions this should be permitted to go forward and establish and show their proof it cannot be that our interpretation and now grappling with the language and with this with what we have here can operate to exclude coverage this is the reason people have insurance this is why you pay twenty five years of insurance premiums for them thank you for your arguments will reserve just says thank you very much