whether this is an appropriate issue to be certified the pennsylvania supreme court and we would say it is appropriate because in order to clarify really the scope and breadth of khobar your  the contractor or so to cavort or the court addressed it in the terms of a contractor there was a subcontractor involved in the pennsylvania superior court had they dressed the sub contractor exception and have found that that did apply there was coverage of the supreme court did not address that issue that it did not need to get to that issue because of how to resolve the issue of occurrence so if the supreme court has never dressed the issue of the subcontractor work session and how does that interplay with whether faulty workmanship can be considered an occurrence in certain instances if you've really look at the cases at the supreme court relied on they were all out of state cases for the most part there was once a period court case that involved not a construction contract involve the a maintenance contract but for the most part of it relied heavily on out of state courts and clarified if you want to say what is meant by same property damage caused by faulty workmanship is not occurrence but in the manner that he was the definition of occurrence was and that that is correct it was it was went down to what is expected and intended it encourages an accident right and they defined accident as something that was unexpected or unintended unity that endorsement has changed the meaning of occurrence to include property damage if the conditions are met isn't that right that is correct that is correct and that it was an endorsement in this case a direct response to what we would submit it was your honor but  another issue that i'm not going to really argue it's in our briefing is is the fact that we weren't in total to take any discovery as to really the origin of this indorsement at westfield and its own  the judge denied our request for discovery so we don't have a document that would be from westfield's file saying this is the reason we have promulgated but i think it's pretty apparent that this happened after varner and it's interrupt response to that issue that was left open in combiner as to how do you address sub contractor work because if you look at can varner in in the big picture it's hard to comprehend how any pain would ever be covered under or when you're dealing with a contractor because contractors only going to be sued if something went wrong if something goes wrong on a construction project is it likely there's i mean allegation of some fault here defective construction would it be fa that this comes out fairly often comes a contract it comes up in virtually every construction project where there's an insurance claim this is a an issue that's constantly repeated and if you look at it you know the history i know when to in the brief a little bit the history of this sub contractor work in dorset that it was intended to to provide some coverage for subcontractor work in recognition that in today's construction of vironment the majority of work is done by subcontractors not by the general contractor the general contractor might do you know a certain element of it but the majority of it is subcontracted out and there was a recognition by both parties the insurance industry as well as the insurance that that general contractor who doesn't control necessarily how the subs are performing the work on a daily basis would want to have protection in case the subcontractor does something wrong and that's what the reason why that hwang which was inserted into the sub contractor work exception but isn't governor i mean the allegations there in the complaint was breach of contract and breach of warranty correct which means contractor didn't perform his job correctly those correct now there was no allegation there that as a result of that there were other you know problems that flowed from that so the whole idea was that the contractor didn't perform according to the contract i'm surprised you don't read concern or as really related to that situation where it's a contract between the two parties and basically they didn't he didn't perform according the contract and we're not going to say that that's you know and accident that had to be something that was an owner well the for instance that the miller began boehm case the spear court case that x expend expanded it widely to cover a sub contractor now that was distinguished in intellects case by the superior court again pointing out that the negligence claims it in that case had been dismissed at the plimer objection stage there was only breach of contract cases left but there are other  many federal district court cases i can't you know just tell you everyone but it has been expanded to cover property damage that goes beyond just the defective work itself  you're correct in that sense that carter was limited to breach of contract in breach of warranty claims and pointed out by its reference to that fact that it wasn't performance upon pointed out that if a contractor just fails to perform its work properly that's not something that's intended to be covered by liability insurance it's not an accident as defined in that right that's right they just didn't complete properly but the cases upon which we live out of state point out that i contractor fails to perform proper properly and its work results in damage to other property whether it's in some cases whether it's even its own work product there's a kid the cases in south carolina which it was relied on by the supreme court where there had been defective number of cases that some cases defective proving in some cases defective siding that result in water damage so even though the siding the roofi is not covered and that's not disputed if in fact it causes damage to the structure for cause damage the tenets are the owners not going to settle the workmanship it's damage that would be unanticipated it would be indeed an accident that is correct that's correct so in our case the allegations go beyond just a situation first of all involved all subcontract work icon didn't perform any work on site but primarily all of the allegations are that the sub contractor who set erected these modular units did a poor job of the one it's maybe the most classic example of an accident is the one of the mot where they failed to properly either shingle or or complete the roof system and there was major water damage as a result there cannot use this case involves allegations of water damage but they were more of a slow and progressive nature because of how a set and then installed windows  of whether icahn had any duty to go inspect the subcontractor work that's not what was the role of the contractor that here it was you contracted with three individuals with three families or whatever but what were sponsibility the contractor have in order to make sure that the job was done correctly for these three homes well they used the term contractors a little bit  sub contractor so it's really the sub contractor who had responsibility and in some cases sub contractors such contracted out the work that they really have the responsibility to make sure that everything who enters into a contract with the homeowner this sub contractor or builder who entered into it really the contract yeah icon did not have a contract with the homeowners icon had a contract with a builder who had a contract with the homeowners and the allegation  a duty to defend by westfield or the masonic complaint because it alleged a motional damage but this is a property damage case right it's primarily a property damage but they did out allege that they had emotional distress that that  may please the court my name is jim a sub contractor role issue there since cover contractors actually recovered under footnote eleven it's noted that some contractor insurance was already collected by the by the owner he or the allegations in the complaint which were bound to fall under pennsylvania's four corners will or both that i calm themselves committed faulty workmanship and the subcontractor obviously were looking at the collective failure under the policies for icon but the pennsylvania superior court and damn boeing extended the whole name of cargo to apply to sub contractor faulty workmanship they took the same reasoning as decided by the pennsylvania supreme court income earner about t fortuity and the accidental nature of subcontractor faulty workmanship but it also said the scenario could arise where they confuse the job orders and then it could be an occurrence and then it could obviously be accidental so they're saying subcontractor could fit and could be accidental whereas a contractor is not accidental i don't see how that helps you what dan bowen is actually saying there your honor is made put forth hypothetical scenarios that could fi a subcontractor exception to the damage to your work exclusion and what the court said is that there are damages that could occur that wouldn't necessarily be the result of faulty workmanship it could be something that is truly accidental sub contractor does work on a job completes the work it does the work well it's not faulty it's defective they fear arise that there could be something truly accidental happens there could be scaffolding for instance but would you not agree that burner turned on the to decide that property damage if it's defined as an occurrence and not accidental qualifies it's slightly different says that the property damage will be extended to have been caught fire occurrence but only if the three wrong as an occurrence will be deemed to have occurred if property damage fulfilled by the three conditions and i'm not debating your honor that you need to look within the us that it does amended you could sure agreement i don't i don't i think that's different than the of the work performed entirely by the seven contractor or the damage caused entirely i mean that remains to be seen it's possible that as discovery proceeds i mean one of two things could happen the subcontractors there were no such things they did nothing or it appears that the subcontractors might have been entirely responsible for this so it remains to be seen and as long as that's a potential then there's still the duty to defend is there not i would disagree your honor that you can look to the fore you could expand the four corners to ref you have to look to the four corners and strictly construe the text of the of the underlying complaints all of which high on itself to the faulty workmanship but it ties well it says iconic or its agents or assigned so it much more seemingly narrow view of what must be alleged in the four corners of the complaint you can look to the facts to see scenarios that you know may or may not open that we look up variable different case here or there there are much your honor i think i think there may be some facts but the key is whether or not they're plaid in the four corners of the complaint and argument is that they are not glad that damage being entirely the work of a subcontractor is not f is under questions relating to whether the work was completed there is no it's again your honor taking it back to the four corners will and looking at the allegations as play each one of the undercover underlined complaints plead that the allegation the work was not completed so right there plying the four corners analysis to the endorsement itself and being targets and the fact that the patent would have to satisfy all three prongs even if the court found that we were dead wrong on one the third issue with not outcome determinative and therefore doesn't wind submission to the pads minister from which which brings us going through the question about certification isn't just this case that it was certified for you it was you're trying to get fo cases down the road what is the law in pennsylvania pertaining to whether something is unexpected in the center for the stand for change sure you know again your honor i think that that issue has been intact dealt with it's been dealt with in workmanship i think it covers the truly accidental damage caused by your subcontractor subcontractor finishes the job they're getting ready to leave it breaking down scaffolding the work is done perfectly the scaffolding collapses and ruins the finished job that's truly an accident that's now faulty and defective work at that something different that was accidental or subcontractors leaving back the truck into a piece of property they just finished so it is there don't need the endorsement of an accident policy as opposed to the endorsement i think not necessarily because the sub contractor is not a named insured here through their policies so i could foresee a scenario where the insurance company would say hey that's not that's not our  you know that's not something that is damage that you caused so therefore there's no coverage this indorsement provides them the protection of giving them coverage for truly accidental work caused by some contract do you agree with his reading of miller's yeah miller was very very broad and it basically expanded to monitor to a sub contractors were may get it was distinguished by spirit we're going into like say they sort of try to back off of it but it was a very broad decision and it definitely has created a lot of my view a lot of confusion because many where case of now followed miller and said well miller you know basically is now the law of pennsylvania when the supreme court has not specifically ruled on that again miller's a fairly old case and if you look at all the recent cases in other states it's really the last you know five six years that there has been this backing off of this hard fast rule that foley workmanship is not covered but there was one thing i wanted to point out in the certification  this type of issue is not unique the eleventh circuit certify the specific issue to the georgia supreme court in two thousand and thirteen in order to get clarity rather than to cite in itself an interesting lead t fourth circuit did recently try to predict how for the virginia supreme court would rule and there was a pretty strong dissent saying that did not feel that was appropriate that they should have certified the question of the virginia supreme court so rather than you know this court continually to have to try to predict how the pennsylvania supreme court would rule on these type of issues expression where there's more and more of these type of endorsements this is just one of many different endorsements have come out since wasn't even workmanship in the example they gave was if they go to the wrong project and do the work properly but they show up there on projects or if they buy the wrong materials that's not the very important issue high grade that it goes beyond just the specific facts of this case would be very helpful to the construction industry any insurance industry in the future to know exactly what is going to be the scope of coverage for sub