very simple legal issue that we've been resolved by this court in the h s services case and that issue is simply when an insurer such as pacer prez is sued for alleged defamation in the act of competing with persons that happen to have been former employees those employment related practices exclusion bar an obligation one a part of an insurance carrier to defend that indemnify that insured simply because the underlying claims for former employees this court and eventually those people were discharged by pace for improper conduct their employment terminated on february twelfth two thousand and three the original complaints were followed in july two thousand and three an amended complaint for father september two thousand and three claim was tendered to our ally in september of two thousand and three with only the complaints being presented to our ally the underlying cases are ongoing and being defended by separate counsel not the insurance council's myself the six cause of action label defamation and  false statements included that each of the point of spending on which when you're working out the century was a thief or misappropriated funds from paste but he was incompetent one point at pace and he was a drug abuser essentially the same comments were presented in the other complaints and this stated on page three of each can point following pace's wrongful termination of stairs or got the doc present fane stairs and got a doctor third parties including industry associates and competitors the languages in the complaints based on least this information are i denied coverage by letter dated october twenty two of two thousand and three further information was provided to our ally following its denial including discovery responses prepared by the plaintiffs concerning the allegedly defamatory statements those responses indicated that at least march in june of two thousand and three after the terminations from employment and after the underlying point of the start of their new business known as integrated automation systems mr we defamed both bikes with statements to third parties that were potential customers of pace and i a s the statements were made in context to be competitors they were not in the context of handling any sort of internal employment party was what should be considered in evaluating a duty to defend under the circumstances of each of services in which nation would start to avoid its obligations to its insured this court held the statements were not related to employment and here we believe the results exactly the same hero ever without any investigation of the underlying facts are i speculated that the claims were employment related and then i defense and indemnity when all it had was the complaints in front of our allies continue denial was without any actual face mr pres have a burden establishing that they in fact committed the family story statements and did them outside of the context of employment when in fact their whole position is we didn't do it but if we but we've been sued for it apply and left its insurers to fend for themselves or we can say a lot about this case we do believe the briefing says nearly everything else and if this case needs to be reversed in the system of as the decision district court in fact if one reads the the decision  involved employment decisions and employment discussions within the labor was done start within the context of the employer's business as such we request i'm sorry request the unrelated to employment and have nothing to do with employment and although those rhetorical points made some good when i thought says them they in fact do not bear a relation to the actual complaints played here in fact they completely ignore the defend would it if you had allegations from the complaint and now the iraq authorities that become a month or two down the road that are third parties if those were the determined not to be arising determination post terminations defamation and climate related defamation occurring subsequent to the defamation speculation versus inference the only inference on these papers is that all of these communications  or possibly not i mean how do we know what do we know about the drug user allegations how do we know those room plummet related or by comparison just simply shot out of left field not relating to drug her life well you know here is that point related to could not be employed related and that's the trouble figuring out from the record here and and that's why if i may i think i think that we have a situation where there is speculation that there may be some other  relation or some other source of that information and but it's only speculation we have a complaint the readiness totality and the right choice sponsors and everything else so just a continuous course of conduct i mean if that's the only reasonable interpretation of the are made for the throw purpose of getting business in the future from other customers i'll go they've gone into competition and that your  does not matter for purposes of the application of the exclusion if the defamation if the conduct arises out of the terminations or arises out of employment related defamation and the broad causal link  performance as an employee whether to two key distinctions between our case and each service as was the district court know how it's focusing on one particular question because it seems to me your theory of employment related is different from what i understood employment related to mean and that you're saying that if the defamation relates to the performances in the employee regardless of the context in which it's made regardless of the purpose in which it for which it's made regardless to the present performance as an employee but what this court found so important n h s services and which is completely not present here is that n h s services the discharged employee lost a preemptive attack on person's performance of them as an employee that if you limit your defamation to that then you come within the exclusion if there has been saying that is directly contrary cheat a thief and incompetent and then three years go by and they go into competition with somebody else and they and they don't even bad mouth the employer but the employer then comes out and says you know to to the now people in the competitive market thought about some of the facts of the other the other the one you have to get under that hypothetical i think you would you would look at what's been provided to the carrier and if you can't if you can't conclude that that followed after the terminations and then write her answer being you know each statement each statement was made on the following five occasions so we're looking at statements made today after terminations and then statements made i think leave a month and a couple of months later third computing and to the extent that it mattered whether your conduct was in the context of an employer or the context of a competitor that would be the holding of h s services we do have additional policy language not presently just services of terminations employment arising out of it what does that mean and then the other capacity it doesn't make any difference how long how much later it is so long as it somehow employment related know that it wouldn't matter the capacity in which you're being sued if it's as employer former employe the capacity in which you're being sued for that contract or for that state and it's not determinative of coverage it's simply excluded whether the person suing you assuming you as an employer former employer competitor or whatever these claims are categor have to tell you when i read that it didn't pop into my head what you just said ok but i guess that's why i asked them to repeat it so i'm trying to you know i try to figure this out now because i read it and it's kind of i said what that means and we're trying to fit it in the context of this case and i was thinking more in terms of legal capacity as opposed to cause of action nature of constable action or that underlying cause of action so i mean that that's why i was having some trouble trying to fit it into this situation but i think i understand you or your argument is the capacity means you know what capacity you supposedly did the wrong doing right and that's how what would respond the duty to defend if we were to accept your definition of opacity it seems like basically no matter when you're sued when or how or what so long as you can link it back to information that was a source of your terminations you don't get coverage i wouldn't necessarily say it was that probably because it doesn't have to in this case i think if the facts you are presented are all consistent with the fact that these alleged defamations relate to determination or relate to this case we have an exclusion that shows and intent not to cover these employment related post employment disputes if you go back to the h in their case it's the last part of the description of what arises out of means that it's it was a part of or directly m proximately resulted from the terminations and you would say that one for the part three it arises out of employment related practices and actually include defamation and there's a slightly different to kill a sion are three there they're both satisfied in a case such as this but there again if there were something out there and you know certainly the letters asked for any additional information ensured me at any additional facts which would presumably be within his ability to provide if there was anything out there suggesting some relationship other than employment some  source of information other than applying some purpose to these statements you know other than to address the professional competence and or integrity of of these employees that's simply left to speculation and we don't think it is the thing can be premised on that  capacity if you'd like well your honor i the capacity issues an interesting one and i i have to increase not just because it's in my client's interest it's a hand grenade i mean i don't believe that it applies here anyway i think that the context that you're looking for in the circumstance is where you have an employer who's an individual and the best example would be you've been sued as an individual and as you poirier for an assault and battery on the job we see this come up in a construction context or that sort of issue and i thought i had cases like that not not in the context of this exclusion this exclusion was meant to take care of employment practices each of services is talking about that these folks were fighting with each other and i think to focus this case back  of the stairs we got to present paste in a in a commercial context fighting with each other to get customers to get customers the fact that there was a statement made between the two defend they are two plaintiffs in they were the context we're talking about was one talking each to the other said i don't like either one of you is this how i wonder stan the context of this i didn't defend the underlying case but but i'm speculating now which is where i want to know i don't know what i do know is that start six months later four months later there were statements allegedly made to competitors there's no dispute that they were competitors and most importantly about this case in my view is the issue of speculation because that's what's wrong with the concision that you have before you this is the issue here is the speculation of the parties and the speculation of the court as to whether there was sufficient evidence to invoke this exclusion is what turns the duty to defend on its head you see the liar thief incompetent drug user just one related package not necessarily no i mean i think that they they are they are separate statements about what these people did and i think that for example and what they did arose out of their employment correct well what they did was known for now arose out of i wouldn't agree with us once you know what they did was known us and they won't go well mary my case is they were talking about to their employees what their corporate practices were going to be and how do we address determination of this informant don't tell so and so about this he was a bad guy but don't tell anybody or do tell spiegel and so it was an internal more of an internal defamation in a competitor context which is what each of the services is and exactly what we have here as pleaded in the complaint that's the only argument is that it has to be not only a remark related the content of employment but it also has to be in the context of the employer i believe that's correct your honor and because it was outside the context of employment the exclusion simply does defense for his defamation for the alleged defamation out of a twenty seven investors disappear a court gets a defense for his alleged defamation one of thirty two causes of action and most of it was contractual obligations and only contractual