first the provision has been applied as a coverage limitation and should be treated as an exclusion second that this court should consider all the facts in the record when considering this provision and then third they assay has the burden of proof here but it can't meet its burden based on the unrefuted facts in the record now first there's should be no question that they see as applying this provision as a coverage limitation here it argues that pursuant to its provision its policy precludes any coverage for the three actions that were filed in the first made during its policy period it essentially argues that the dates that those three actions were first made should be changed to a date that's prior to its policy pursuant to this provision and pursuant to cases that have addressed provisions and definitions similar to those c policy this provision should be treated as an exclusion which means it should be construed marilee and not broadly no just the first question i have just because we have the odd truth in the record that you have one of these provisions two we would interpret if yours were before sweden interpret it equally narrowly it's an exclusion we would yes if if if we have a perfect you do actually factually here we have what would be referred to as a and therefore it would be construed narrowly you know unless there was some specific case all the said otherwise under the circumstances but in this case there's no question that a sees climate as a coverage limitation there saying no coverage  our policy pursuant to this provision and in fact in its brief c doesn't cite any authority to support its position that it shouldn't be treated as a coverage limitation they just simply say that you know it doesn't always apply as a coverage limitation but that's exactly what they're doing here there should be no question about that but the key points here is that the provision should be construed narrowly and not broadly because part of a assays argument and it's briefing is that because they have a definition for cock as a common nexus any fact circumstance situation room vent you can see that these suits would be interrelated under that plain language and you're just relying on these near owing constructions and other principals to say we logically related i think that's important as part of the court's analysis and i believe the case law that sided on both sides of this issue demonstrate there has to be some sort of causal or logical connection between the acts or the claims to be considered in a related if one of the if were the case in africa it was the second or third but the first one was brought as a class action if that had been the first one filed and it was a class action would would that then implicate this that that that class action you know i mean it is it's just one action in it of itself so i don't think it would trigger this provision just the one case that that's the real question if the wiggins complaint had said there is a common practice a wrongful fraudulent scheme that that's what rev claims that would make it a very different case wouldn't it because that well we would argue that pursu circuit's opinion and ruling in the mahat killings where they addressed the term related acts wasn't the fine in the policy but they defined it is meaning logically or causally connected and in that decision fis circuit ruled that a single mode of the for a single goal is not enough to make it a single act and that dealt with legal malpractise claims and they ultimately held that they were discrete acts that resulted in discrete losses so they were not related for purposes of the policy that was in place in that case and so what we would argue here is that even if you allege that there is a common business practice on the part of red claims to a certain lanes in a certain way but that ended of itself is not enough more than a common business practice though what if we looked at it for class actions or the test of commonality the the claims have to involve common factual or legal issues so why couldn't we say here there's a common legal issue  all of these cases about the legality of this lien practice well i would argue that all the calls are law logically related wording that's in the definition of their policy that there's a decision out of the district court of colorado that side y means that one must bring about the other and so the argument here is that just because rev claims asserts a lane in a certain way in one case didn't lead them to necessarily a certain lane against a different patient  another case that doesn't have anything to do with the first assuming that's their business and let me ask you are these provisions intended for mass tort say a pharmaceutical company you know someone says their drug is defective they get sued logical presumably mean different things cause it would be more but for and at least if we look at the first filed action here wigan's it isn't itself saying there is there is conduct happening in alabama  solve logically gets closer to the business the whole business concept yeah but there are cases that we cited in our briefing both both landmark and read claims that demonstrate that you can't apply the provision so broadly when you're when the claimed connection whether it's logical or causal is the common business practice because what you would end up with is every time that their suit related to their for business would be considered in a related and then all of those claims would funnel back to the first claim that was ever made and they would be limited to one policy limit and in this scenario there are limits to one would be limited to one positive limit that has an eroding limits meaning the defense calls a road those limits and that's that's and those cour recognize that's an unreasonable approach is just too broad and so when they cite the second in the ninth circuit's that seem to contemplate that what do you think those courts what's the limiting principle those courts put in and no you cited ma'am had our case but there are other in the circuits are really struggling and i am too so it even with the least favorable circuit opinion i'm sorry even with the least favorable circuit opinion do you think you still win and if so what's the limiting principle that circuit courts are attaching to relatedness i think that and those cases the second night sort of that you mention i think they're looking at it as long as there's one tom and go or one common motive that they say that that's enough to make them  related or in a related out of the circumstances but the other cases that we've mentioned recognize that that can be too broad of approach and that's why if you view it as an exclusion as it's been applied here and construed narrowly i think it takes it out of that that  i'm just that i'm here on behalf of red claims i'm basically one good risk for separate points hopefully first i want to point out is this much of the much of the ruling from the district court below and in much of a i ses sees briefing doesn't focus on the call in logical language and in a related long to lax policy it sort of jumped straight to any and the words common nexus you can't simply read causally and logically out of the policy the district court itself says policy language matters but logically would seem to be a word you'd want to run away from because most things are logically related it would be logically related if it's your client's company and they do just this one discrete dent to go thing lean on accident victim patient when when the you know to allow the hospital not to recover the discounted amount from the health stead you get a third party for the full amount yes sir no sir we do not run from logical these claims are not logically related one claim is not dependent upon the other and one claim does not flow from the other mrs wiggins lawsuit hospital same states they are yes sir and they have different tort phasers and they had different third party recovery sources and they had different injuries and how the lane itself was actually applied in single act rift plays a district court said rivers claims business model is on trial here there's no question about his or ma'am our best case is met but i would also point out that there are two other cases that are extremely good on this point and i want to point out one a couple of things about the seneca case and the miller case that they relied on first the horrible chick and i apologize if i pronounced that case wrong from pennsylvania dealt with debt collection and district attorney's office for a multiple states and multiple different district attorney's offices there the court said yeah you've got a single business motive that's not enough you've got different district attorney's offices you've got different states you've got different agencies involved in the ace case the court granted it was looking at different subpoena issues but it came to the same ruling the were issued by the penis in that case those were issued by different state agencies requesting the same or very similar information other words to different agencies requesting same information the court again said no that's not enough this and another point that is very critical to understand or that i want to scris to the court is this in the seneca case the second circuit case the m circuit case and the whip case the eleventh circuit case none of those cases addressed a major argument that we have pressed below and are pressing here which is this under a assays reading and the district court's order riffed claims could never have coverage under this policy ever all it would take is a single mom commonality rif claims will always be involved that is a single common element if the district court's order is correct my my fellow attorney there i don't know that you can or can't say they're related you have to look at the single the same will miss the point now granted if you're talking in a class action situation you've got some commonality issues there that get satisfied and people get brought into a class action is all of this you're saying we study very hard the wiggins allegation yes yes sir yes so that's one of the things i'm saying and you know alongside that we have to text which does say could be different claimants and different causes of action it does your honor and if you read any and common nexis as broadly as the wiggins claim as scuse me as broadly as the district court ruled in this case writ if this court affirms that case it is impossible for claims to have coverage under this cos i think you must have argued to the just court and it's it's a powerful argument but what if the answer is you should have just negotiated a less comprehensive provision because you're on our insurance policy and we're dealing with mississippi mr morgan pointed out limitations or narrowly construed tightly construed against the insurer will no the only proof in this case the only proof in this case about the expectations of an insurance policy c got a claims made policy they were right here so no we didn't buy a current policy yes we could have bought one to cover that but knowing shirred ever buy a policy with any expectation that their claim will that they can have a claim without ever becoming again under the district court ruling you would literally could could go back to the first policy in the first claim or if claims ever made their business model is not it is not going to change and it doesn't change it's the same so this is the insurer if they'd known there was this sort of gets to the issue date the alternative issue they raise if they had known there was already litigation challenging the business practice which often leads to a flood of copycat lawsuits that they would have insured so i mean sure they would have at least priced in the known risk yes sir your honor and and only at point a point they raise is that we didn't tell them about the wiggins lawsuit i want everything when in review of this case please focus on the application materials that they type side and talk about those are not landmark materials he's been those are not assay materials those are issues landmark materials that we submitted at that time to our issue and land more for coverage again coming up when that when the first landmark policy was going to expire they agreed to accept those materials landmark was already defending wigan's if you'll notice in those materials mr williams did disclose other lawsuits that were currently being defended cases first of all alabama law in arkansas was not the same in each one of these cases miss wiggins had the case filed directly against her a recovery occurred against one of her policies for under insured or uninsured motorist coverage the rivers last landmark to dip in pleasure right and that is another alabama yes sir mr williams did say in this case too to a landmark first yes sir but the case resolved differen construction issue i think it's a red herring i think it's immaterial because i think mississippi courts and frankly every case that any one sided says that plain language of the policy needs to be interpreted as written we're not asking for a liberal expansive reading we're saying that our definition is broader then when i was here that other case it claims that yours is so broad that you ensure this company knowing what they do but you insure them theory that it's the business model that creates the commonality why wouldn't you be saying even that suit would be related to the widgets because the definition requires that the wrongful acts which the wrongful acts or any actual ledge era mission are a so in other words the the grab them if you will of the basis that they're saying here's what she did wrong it's a fine line they're not saying what she did wrong is taking on a collection action of what you know i'm assuming i'm saying assume they filed a lien but on the wrong person the fact that a lien without is not what we're saying creates the commonality it's the basis the fact that billing is the basis that the exact same practice with respect to the lane is the basis for their causes action in each of the four claims the fact that the lawsuits are mirror images of one another is the commonality so that therefore if we conclude looking at your chart that they are images that the first filed one wiggins didn't allege a common business practice then you lose if that's i mean i think i think that so long as there is a common and of course as we've sort of skirted over some of the definitions and compare them to cases i don't know that there is one as specific as as the one in our policy in the cases cited but if the song is the wrongful acts are causally or logically related have a common nexus of any ege what that means they allege that the business practice as was alleged in each of the four and whether it's the business practice or it's an action that's part of their business practice the action is to follow to to disregard insurance  sheeted rights to go filing against the tortfeasor whatever third party claim they have that's the common it's the exact same thing and in fact the we're going to lawsuit in the heart of a lawsuit you know as as the court noted was followed was are i think there are three outcomes that could come from this case obviously one would being that these are four separate and unrelated losses and each interesting lee if i may sidetrack for just a moment to come back our ok well let me finish that is i'm not going to remember things but we also i think the second scenario would be what the district court concluded which is obviously what we're advocating in that these are all there's really no way to divorce any of the four from one another but a a minimum you've got to alabama lawsuits that are basically the exact same lawsuit and candidly you have to arkansas lawsuits that are basically the exact same lawsuit so if you want if you were to distinguish jurisdiction hospital i think are the only two distinctions there and the in our definition of wrongful acts would say that those are irrelevant distinctions because different parties are relevant and different venues are old but that would be certainly distin that bears out in the course of conduct of the parties before they decided to choose sides on this issue keep in mind when this claim came in and one thing i do want to course of conduct bears out option three pledger and wakens are related and interpret in the definition of in a related wrongful acts at that time a i see was not aware of the wagons last i see has one limited liability of two million dollars it's whether it's es wrestling's didn't object didn't protest about treating it that way in no way did it protect a icee from from liable in fact if you carry that forward if there had been a subsequent lawsuit sought after  c policy similar facts its position would have said those are ours it was only after it learned of the original wigan's lawsuit that it said well wait a minute we have again a third of these we've already determined to be interrelated which happens to have been solved before similarly when the lawsuit came in to rev claims and its agent both e mailed landmark and said ledger and wigan's these are the same lawsuits i'm paraphrasing slightly but but not significantly they should be treated as the same claim under the same policy and while landmark certainly reserved rights and i'm not saying that they didn't raise this point initially they certainly agreed to defend and acknowledge that there were commonalities in pleasure and ways so from the course of conduct and the sincerity of the parties in treating this before these legal issues arose it was we treat the least a icee treated them consistently and not with not with a position to escape coverage in fact it's us it's position to expand coverage and importantly here also we're not arguing that there's no coverage we're arguing that it relates back there will be covered  there's no allegation that they're limited liability is an issue i don't think it is going back to the policy definition of what significance do you give to colleagues only related when you're logically relate i think you're saying it has to be targeting the same business practices watching the same business practices so i would say it well if you read the cases that they've cited they were some of those cases would say there's a causal connection is greater than a logical or other connection so i would say that would be a more stringent burden having said that we still have causation here which is the practice of fondling in the lawsuit was the cause of the lawsuit was the basis of the lawsuit so i think you still get there in even out of the cases that don't have the logically connected and unlike mot if i'm pronouncing that correctly by the fifth circuit this does define it while they say that defined is similarly what months said i think is that they're related if they're legally or causes related well then you get in the question is what does that mean we'll see goes further and says here's what that includes it includes all wrongful acts that have a common excess of any fact present situation or event or which are the same related and it doesn't matter if there's some courts have said we have different claimants so therefore these are different client well we've addressed that here so i think any of the cases that they have cited are distinguish same bank same attorney same misconduct looks a lot more same then different states different laws different hospitals so again first of all we have a definition that i think is more more the language of the policy exactly that first but second what the court said and i'll take the court at its word is that these actions by the attorney were completely separate malpractise are instances and actions of malpractise connected only by a common mode of increasing c s so if if if for example and i'm always dangerous dangerous getting into hypothetical so you tell it insurance but if rev claims had five different business models practices procedures etc and all of those were to generate more revenue for the company will that that motive according to at least moderate mahat would not get them there but again and that's where  claimants you had separate transactions you had separate for shows that they were wanting to have and in both of those instances the insurer denied it and used this mileage rule that they refer to as the basis for denial both separately brought represent to the borrowers that they were not having to pay finance charges that were or some type of closing charge but they were rolling those in to the loans creating higher interest rates thereby really makes their answer that we have to do a deep dive into what the allegation was and in each of those cases the original first filed allegation did express this larger practice in plain which then encompass the later ones whereas here the wigan suit is a very narrow one had one condemnation policy and then it led to all these wrongful seizures right were demolitions so you have an originating single event or single wrongful act and then therefore necessarily all the rest are related but here they insist this is just their business and they do very different suits all around the country so it's unconnected well so mister williams affidavit which i think what they're talking about is the record in the proof or proof in the record on that point he both says that this is our core business that he says in one that's very conclusory allegation driven by the facts this case i think but more importantly he then goes back as two affidavits one says we may following to collect from third parties notice as we will but regardless it is it is that practice and they certainly can engage in a this is a policy issue to i believe a law firm but but i'm sure mr williams his company and and as an additional insured wrestling's of that so there's certainly no illusory coverage here i mean i think i could i believe said here in a spouse numbers and numbers a number of i would assume that if they get the file and don't timely assert the lean in the funds or go to the claimant if they fail to timely solve lawsuit to enforce it if they take actions in violation of that they say they're not a debt collector but the i do think you're going to refer to the chart at four fifty six the record i think that that's instructive i don't think the fact that there was an allegation that there is a pattern is is not material when there is an allegation of the same conduct it's in the pattern the i believe the cases that we have cited are similar in fact admittedly there's a lot of cases all over on this this issue  issues i think that's a red herring all we're asking the court to do is look at the policy language interpret it as written and apply the facts we have as the district court did and again i think that if you look at the case law that is cited by re claims and landmark it would demonstrate that to the extent there's been a departure from which i think is the minority of the application they choose a different policy language and very briefly in the  asserted that we haven't addressed the issue of the connect case in of the south dakota network case which held that the term common nexus had some ambiguity first of all it didn't have the language that's in ours that goes forward to help provide context and definition to that and those are obviously different district court cases from other jurisdictions interpret different facts but i think interestingly from connect case the court even using the broad definition because they found two possible definitions and the connection was they required a causal connection since it wasn't the fine they said it has to be defined it could be defined as causally or not causally they're go identical met but they must be sufficiently related or similar even if you were to say to use the ambiguity argument and you were to use connex definition we absolutely had similar facts and similar yes i think it's critical to point out that the only evidence submitted in this case or the declarations of bread williams there was no evidence submitted by say as to whether or not these were independent business decisions and not things there was no effort describe those there was no effort to get other contradictory evidence those are that that is the only evidence in the case as to whether these are independent business decisions that is it that is undisputed seneca from the second circuit member from the fourth circuit we have from the eleventh circuit and the ninth circuit case that was just discussed none of them have an undisputed fact that they're independent business decisions that is literally a distinguishing fact between every other case i look at the looking at the excerpts in your brief of the declaration i know he says these he has these statements about they're all different situations but then when you read through it he says one third party recovery sources exist red claims will start to lean on that third party source and the hospital may be able to fully recover charges instead of money and it goes on and on and when you actually look at what he is specific descriptions it seems like it's a standard policy no sir your honor first of all they have to determine is there a third party so they have to go through a common business practice which appears but you're never going to lawsuit if they don't even s that goes to the whole point as to why they're independent business decisions there's no lean and there's no lawsuit in some cases they never serve it and others they do that's demonstrated by the fact that all of these were differently resolved  end the next point i want to make about judge the opinion below is this even under the judge's example below wrong lanes wrong parties wrong recoveries there's still the same commonality under every example cited to still involve rev claims has a contract with the hospital there's no coverage thank you thank you all so specialized difficult issue and you've been very helpful arguing last case for today