additional decisional insured under its policy your honor the district court's order represents the st of its kind where district court combined allegations in the state court complaint in florida allegations that were not pled and incorporated into each other and couldn't have been under florida law and the district court rewrote the allegations and stacked em francis to create a world of proposition that that can be done and this court in all of its opinions in the florida supreme court in one thousand nine hundred and seven in linux liquors in the floor supreme court in two thousand and jones versus fi set forth the standard of the courts having to read the ins as they pled against the insurer that's the critical language not the allegations as pled against somebody else the insurance duvall we wouldn't be here right correct ok so what you're saying is these are all the allegations let's just put aside looking at the nd camp because i think there's perhaps a duty to defend even without looking at the  i know the allegations against catamount don't mention duvall ok but it says you failed to provide a morning's of a known dangerous condition and why would specific paragraph that your honor is referencing against catamount count three what the pleader alleges is that the failure to warn was that of catamount that catamount failed to warn of a known condition and what the district court found is that duvall failed to warn and that could have been actually the district court and didn't even make that connection but what the what the district court did your honors the district court said well the concrete cutting that's alleged in count four is what caused the debris which is not what the allegations of the complaint say to the court st made that inference and then said well catamounts being sued because it was potentially controlling that area would do volleyball concrete cutting caused debris then it could be the same debris that was slipped on and therefore there is a causal connection no court in florida ever and certainly not this court has ever done such a thing which would violate the pleading standard in florida and the visitor ate the meaning of the policy there is no allegation in this complaint and certainly not the allegations about providing warnings i'm talking about catamaran falling providing warnings about a known condition there that general on the side that there subcontractor may have created that's the critical wall walking toward a portal near an area where catamount was performing construction work and had established a site and then that same county alleges that catamount in fact created or the condition was known to them for a sufficient amount of time your reading of this complaint centrally is such that all four defendants were sued because this individual slipped and fell in an area and didn't know who was controlling it and so he but just because that was not part of the case however the contract that your client had with deval covered liability arising out of your work and then again back at the macmillan complaint millen's complaint and a case in count four that devolved was doing work for a catamount makes reference to the concrete work and the  i don't remember the exact exact terminology but what you're saying as i suppose is that this liability was strictly catamounts and we should ignore the broad interpretation that florida courts have given to the phrase are arising out of your work no your honor i do believe that the rising out of languages broaden this court should apply it as it has  its other opinions but the critically the word slurry or concrete story appear nowhere in the complaint i'm sorry and that's your honor the other thing is the sub contract appears nowhere in the macmillan complain macmillan complaint says a plain reading of the paragraphs don't show that and for those reasons this court should reverse on the do to defend issue this court should also look to the indemnity issue and followed judge marcus's order in the highland holdings case where judge will judge marcus in that last paragraph of that opinion on page eight hundred and twenty one dollars said that the insurer who is seeking coverage has the duty  to the burden rather to prove that the settlement was covered under the policy in other words the only record evidence we have in this case is that zurich paid two hundred and seventy five thousand dollars to settle a catamount but there is no settlement agreement they repeatedly stated both in the stipulation the pretrial step found it docket one of seven and in their motion for summary judgment that they would for an in cameron special with the court but they never did and so the district judge didn't have any evidence and in judge marcus's opinion from highland holdings even had the settlement agreement in that case but as judge marcus said you didn't separate portion for the district judge which portion was covered and which portion was not covered and that's absolutely critical and the law is from this court that you have to do that and so without having the settlement agreement and without having any other evidence to apportion the court's only finding at the end of its order starting on page forty five dollars is that because southerners failed to defend their liable for the damages that flow naturally there from that breach and therefore have to pay but those line of cases that talk about breaching a duty to defend and then being liable for the damage all relate to the defense your control of the site yourself did this so they just put those two words there with that then and that would in the other thing that would have been enough your honor is and i'd want to correct one statement your honor just made the fact that the debris was not caused by the concrete cutting no where in the complaint does it say that that's an inference the district court made and that inference is made in the allegations against do fall if you look only at the allegations against  or it was known to them not that duvall cost him for those reasons the scorcher thank you between us with the court's permission i plan to take approximately eight times eight minutes and mr macintosh should take about seven minutes be addressing primarily the duty to defend mr mackintosh the duty to indemnify since those two issues are before the court i'm not going to waste the court's time reciting the facts here i think the facts are well known to all the parties and are not in dispute the complaint says what it says what i will say is that this case and these issues are governed by very well settled and completely uncontroversial principles of florida law on one that you need to defend and how it's interpreted under florida law what triggers the duty to defend in a complaint and three the scope of the particular additional insured indorsement that's at issue in this case which does not involve allegations of vicarious liability and i'll talk a little bit more about that in a minute not only to the district court's order apply the correct analysis was very well supported by the record  but some other owners has claimed in this appeal that somehow the district court has created a seismic shift in surance coverage law that's going to open the floodgates and that any time after this opinion lobby look at the four corners of the complying the four corners of the policy why is it not clear that what they're alleging is against  have you get that is a duty to defend that count when i'm at the whole case but not that count against catamount i will explain your i thought me through that well this is one of the issues that was argued below which broad how do i get that they have to defend this because your honor for st of all we believe that florida law requires a court to look at the entire complaint and we believe  great you have to get to the house like a count four are the whole complaint for you to read that you know i'm not necessarily because the additional insured indorsement that we're dealing with does apply the arises out of language which is construed very broadly in the way that that is interpreted is that there doesn't need to by be vicarious liability the test is is the complaint taken as a whole show that there is some potential that the liability faced by catamount was in some way connected with duvall's work now remember the procedural history in this case duvall was not brought in until this rd version of the complaint and as counsel pointed out these counts are substantially similar they all alleged very similar things against catamount and the other parties it was not until the count was added against to fall that we finally got an explanation we knew that there was debris of some kind we knew there was a what i'm trying to understand how do we get and count three by itself that the claimant count three a arises out of the work of deval when deval is not mentioned there i don't think it has to be in fact harris liability i think  could just be a brief dettol well i would point the court's attention to paragraph thirty one that alleges that catamount by themselves or through their respective agents employees or servants acting within the course of their employment created this condition that's that that certainly opens the door to consider that you had subcontractor involved on this project that would have been deemed an agent or servant of catamount i think that the potentially opens the door but again are on our your honor our position is that you do have to consider all the allegations in the complaint because of the standard that's applied under this under this type of additional insured indorsement i mean think about it this way here here's  an analogy that i would offer the court let's say you have a two count complaint for a premises liability case and the you have a property owner the landlord and then you have a tenant who runs a bar and  the there is a shooting and a death negligent security case the landlord is sued for because they have strict liability or they own the property but the tenant is sued because they didn't provide best the best one that we found your honor is the case that it's an unpublished district court case in the middle district that we filed a supplemental authority that is the evanston case that we provide to the court and what florida case i know that may be applying florida law your honor i think that what we can offer only are a multitude of cases that stand for the general proposition that you consider the complaint as a whole i don't know that there is a florida case that is directly on point that says that in this specific circumstance that you consider allegations from one defendant to another defendant other than the evanston case but it really is a matter of in our view uncertainty with respect to whether the duty is triggered or not it has to be weighed in favor of coverage and in favor of a defense that's the situation that we're faced with i think the very fact that we're able to stand here today and have some intellectual debate about whether or not there is a duty triggered based on the the various allegations and the counts shows that there is there was an uncertainty that would have required southern owners to defend here we think that is absolutely clear and the cases that they provided saying that you can't do this are are simply provide no guidance to this court the selective insurance company case that was cited by so known as doesn't apply to this situation that that in that situation the court had to consider whether a duty defend would be triggered by an account that was never play that's not our situation we do have a negligence count played against catamount again when duvall was added we had for the st time an explanation not that it's dispositive but we had an explanation that was lacking in this pleading prior to that amendment that finally explained where the accumulation of debris may have come from duvall's concrete cutting work under florida law based on this additional insured endorsement which every court that has looked at it has said arising out of it does not require a direct connection it doesn't require a finding of proximate cause the district court didn't have to find that catamounts liability was conclusively caused by do fall that wasn't a test the test was is is a fair reading of the entire complaint show that there was a possibility that ken amount was being sued in some way connected with du ball's work i don't see respectfully how there could be any reading of this complaint in which you wouldn't reach that and parties agree on that so that others urges here that there's no record evidence from which the court could have concluded that the duty to indemnify existed in this case and that just that it does evident she gets a existed but the question is what is the extent that they have to pay i'm troubled by the fact that all we have is the two hundred and seventy five thousand dollars check ok i can accept the hard decision this case for me is not to do or that you've got  car catamounts for our kid no you cannot make it so it covers what you have nothing in this case on the settlement going that rights not on the record right you have in the record of temple question do  identify it doesn't matter for this reason judge southerners breached its duty to defend when it breaches its duty to defend under florida law it suffers the perils of its lack of living up to that obligation to its insured liability a man i don't know what it says and does exactly like with all respect that doesn't matter you want to because that would become borderline collusive when you start drawing settlement agreements to try to get your coverage in place that's why the court in this instance will not look at that the  and the general contract the rd about the complaint the general contractors qantas now evidence here other than the contract documents in the complaint is that correct that as far as as far as the role in the debris fastened cap four were against it if i can finish down the three says accumulation of debris at the construction site started by catamount count for says same accumulation of debris at the site where duvall was performing concrete cutting work and had begun performing concrete cutting work the nexus is there in the complaint that the sub contractors work is what caused the accumulation of debris which both entities can be legally responsible for the contractor effect the only evidence in the case that was extant at the time is southern owners did the concrete work we also have photographs that were produced and that were sent with our tender letters which this court can consider on the duty t the m c u claims handler she attached and referenced the photographs and told southern owners you are have liability here because this arises out of your insurance work here's why the plaintiff has now said he slipped in responsible for operating maintaining and cleaning his work site we also know that from paragraph nineteen do i was required to indemnify catamount for it's for any claims arising out of its work so you liability arose out of duvall's work there's no question about that in this record it was duvall's concrete cutting work that caused the debris which caused this gentleman to fall number one number two well even even if they it was their debris there are allegations about and the general has control of the site as i understand that on the day of the fall duvall had been taken off the site that the record shows off the site but because of the weather and only catamount had control of the site now maybe i'm wrong about that oh no you're right about there were southern owners got sideways because their adjuster said this was a virtue of the fact your missed catamount had removed evolve from the site on the day it had no warning and allowed him to come across this site where they were in control your client was in control of the site right on that day and day in question deval was not even they are much less in control correct that is correct and we know those facts so there's a separate allegations of negligent by your client of failing to warn of the two reasons number one southern owners has acknowledged that it has coverage for catamount in this case how it paid money and put them on a release it's acknowledged it's got coverage not only that there is coverage for catamount under its policy because of the broad arising out of language they chose the i so form that they chose arising out of if they had chosen caused by or caused in whole or part by other iso forms that are in the industry then you may have a valid point there but once please the court i'm going to address are you start the evanston case has as a good penman bad judge dolphin who did a lot of personal injury and other types of work like this and he says we can't turn a unpublished opinion from two thousand and seventeen that we received two days ago that's never been cited before by anybody on this appeal there were forty eight footnotes and on footnote twenty two judge dalton indicated in his opinion that he was relying expressively on the allegations from that underlying complaint and if the court looks to that opinion from judge dalton judge dalton says specifically that he's relying on allegations one hundred and one thousand two hundred and thirteen from the underlying complaint which were general allegations about the subcontractors work that were incorporated into the allegations against the additional insured which is the entire argument on this appeal in your honor in your own opinion judge alleged in the pleadings and claims against the insured and your honor cited the lawyers title case and in that case and that written line i just read is the line that the florida supreme court has employed time and time again you analyze the facts against the insured and there is no opinion certainly not this last minute unpublished district court opinion from judge dalton where he relied on general allegations that were incorporated into the specific count against additional insured no case anywhere that finds that a court can look to allegations against another party that were not pled into the count against the party being analyzed in this instance the additional insured your honour's the statement was just made to this court on the indemnity issue that the complaint did not allege that catamount had anything to do with the debris and didn't cause the debris that was the statement to this court paragraph thirty of the nd amended complaint mcmillen which is found at page seventy two dollars to fifty dollars in the record this is for docket eighty eight re and this is the paragraph in the count against catamount the accumulation of debris on the outside walkways was it effectively dangerous condition and or the causes and origins there of work created by and or known to defend and no case allows zurek to make the argument that they're making on appeal as to the duty to defend and on the duty tempt them if i judge whole asked the question repeatedly and the only answer that could be provided to this court aside from the actual check about what evidence record evidence is there from the underlying state court case that this settlement payment had anything to do with liabilities arising out of dubai work believed it was that caused the debris and even in that instance in the letter which they cite on page twenty six of their answer brief your honour's they cite that passage from their own tender letter they don't even attach the photos the photos are in and the record attached to that letter so there is absolutely no evidence and under judge marcus's opinion and heiling highland holdings this court should reverse thank you thank you very much thank you all this court  a jury thank you