assurance in light of the fact is across appeal here i would like to reserve five minutes of my fifty words thank you the issues even though there's some overlap between his use of my appeal and the cross appeal particularly the damage issues where it overlaps they obviously want to focus initially on the r appeal that pertains to the lower courts conclusion that the your product exclusion although a pl  the good news is the your product exclusion is not as complicated as the plan of the prior case basically the essence of an analyzing that exclusion is taught to see go to the defined term what they want to do is interject into the exclusion the limitation that is not fair the exclusion does not speak to the identity of the insured against whom the claim is brought it speaks to the identity of the property damage effectively they're rewriting the exclusion to read something along the lines of as i said in this reply brief there really is a damage to the insureds v insur do and say the possibility is a legitimate possibility for purposes of the comparison test if it's something that you can hypothesize solely in your mind and then you go to the complaint and it doesn't say that didn't happen if  supposed to be a test that looks to the complaint not for the purpose of deciding what really is being alleged but to ask yourself the question does this negate what i just made up in my pocket sized and that's why i put my three the cross appeal but let's start with your appeal which has to do with the fact that the insurance is judge found that the president of the company who you sued as an alter ego of the company and for his own misrepresentations was the judge found that your product exclusion part coverage to the company it necessarily barred coverage to that's correct unlike many exclusions which speak to being insured the product and so plus that was just a representation as to the warrant it was awarded to us of the quality of the boat as i indicated every warranty everything activity is done by a person if it's a question i want to see if you're arguing a slightly different theory because that is the theory i understood but it's different than what you heard take you laid it here which is that the owner of the company is sued only most certainly fraud miss billing a lot of the only thing that could conceivably be covered in this property damage that's alleged is the actual vessel itself a lot of the other things are economic losses from supposedly charging for other projects which is an economic loss and so when you hope focus on what conceivably gets through special coverage well property damage the vessel could be damaged but then you go to the business including its product i don't believe part of a sixty eight is really a statement of an independent claim a misrepresentation it's an example of one of the warranties or representations and as to who made it it's the unfair trade practices count you have to be a allegation of fact as to who within the company made the representation on behalf of the company to be an unfair trade practice when you look at the schools in this explosion what it was down to should be applied no differently than if i'm still using the words your product which have to be defined because every insurance product is different if this exclusion said this ensures does not apply to any claim or property damage to any vessel sold or manufactured by lyman was boat building in addition to cla and failure in construction with a court found no duty to defend not because you can kick back and i park the size and theorize about some sort of damage other than to enter the work or product but because the complaint jools didn't really even attempt to make such when you look at the very precise nature of the damage it damages claim here very precise i want my money back i want the difference between the value of the boat as promised and what i got i want the expenses  inconvenience very specifically asked there's nothing there's not even a general allegation or when other damages even bay would condominium had some of those general things in the court said that wasn't enough to go off and hypothesize that it included something that wasn't stated in there it's almost to me it's impossible to have those three decisions be consistent with a finding of a duty to defend in this case thank you our cross appeal and you're correct your own if in fact there is damage to property whether it be the owner himself in this case for us or wind or a guest on his boat to the extent there would be damage to any property other than the boat there absolutely would be coverage in the duties as men would be automatically triggered and the reason i asked that question is that because it's it seems to me that as you look at this from your perspective what you're saying is that  this other damage which is not directly the boat could occur both individually and to the corporation that's how you make your claim i guess that you should have had  broadly in the state of maine the duty to defend this construed in is this court held back in two thousand and three in order to europe the duty defend is much broader and mean than in other states in this case russ irwin and then i think we need to get to the hypothetical made a series of allegations and complained about the fact that this was going to these residents on the ocean on the open seas and that there was significant risks to property those allegations that he makes in his complaint and at the end he does have the catchall of to other property other than the product itself so that always be a duty to defend anyone else i think it i think it would depend upon the causes of action that are asserted in the complaint which is the only thing you look to and so said by a baseball bat from you and used that that which we know i didn't but had i used it it might have broken off and hit the third baseman i think it would depend upon the theories of viability of certain the complaint and exactly what the policy provisions contain for you is a possible it is your honor but in each case is it absolutely going to occur that the duties run is always triggered i don't think that's true i mean there's a series of cases that would indicate that if the allegations as put in the complaint what normally complaints ought asks about why the actually i don't disagree your honor i agree that the complaint about any allegations regarding the potential for damage to property other then the vessel itself is silent but what we do know is that there are allegations that says there are risks to the damage to property and the only question on the duty to defend is whether or not there is the potential even if remote that certain allegations to ledge that that between perhaps e g l policies and other types of policies is a is a valid one however if you look at how how would the case where there was a dog a condominium association and the court the mainstream judicial court determined that there there was a duty to defend because it's possible the never alleged in the complaint that the dog could have done property damage to association property that was nowhere in the complaint but the possibility existed i would i would suggest that the the facts of the how case are much more much more the ten year weighted on the risk of the possibility or potential of property damage than we have in this case given the first is that the vote was not kept lyman's product the product was contracted to be built manufacturer sold delivered or disposed of by lyman morse i think that if that's the are you being presented as an inappropriate reading of the policy the exclusion needs to be construed strictly against the insurer and if they intended to be the product the exclusion should read that way it doesn't it says your product  understand insurance argument isn't you look at the solutions you'll see your product which is what you just defined as the property how do you respond to that no i think i think the the property can be mourn the exclusions the way they want to they should have simply said the product by putting the you were in their conscious decision they've now limited the application to whoever contracts to manufacture or sell it distribute which in this case is clearly lyman morse the interest of all right can you give me an example of a case where you could buy a product and the part of the fact and under this policy if you could sue any employee who gave you the unnamed insured or insured i think you were always true to the duties of defend and what the carrier certainly can do is can depend on a reservation of rights and whether there would ever be the indemnity obligation something down the road but here i do think so if it's if the exclusion more to buy them strictly construed against them is your product and this was not cabot lime in the individual's product and then there are record references that show that cabot lyman is being sued at least in part because of clear if the obligation to defend is triggered even if that claim is subject to dismissal on the merits you still have to defend so whether he is the seller might be an argument to be made on the merits of the u p a claim but it's not pertin whether or not the duty to defend is initially triggered for m which will therefore create a practical incentive for the insurer to kick in some money so they don't have to hire a law firm and that won't that become standard practice and they know i don't i don't think it will i why not why wouldn't someone do that because i think you still need a very narrow circumstance you have here this if the court were to simply affirm judge wormers decision in order for this to come up again you need a situation where you have the company and the individual sue simultaneously the individual will have to be sued at least in part because of statements he made individually to a third party or the hand of the person the product i thought a company might yester the company was how about the cashier who goes think cashier is clearly involved in in the products would become the cashiers product that's distinguishable than what we have here this is not cabinet lyman's product in the statements he made to mr irwin individually were not related to the product it was about his personal experiences and the issues that he personally had encountered not with lyme and more setting counter regarding his experiences around c and notably the issues a refrigeration that mr  complains about in his arbitration demand and i see him all the way throughout his complaint relate to those issues about humility and tropical waters that goes directly back to the point that mr lyman made to so you're saying that representations were the product they were about something else the climate then alive that they could have been i'm not i'm not saying you're on of that they didn't relate to the product but properties doing it as the owner of the company that is building their yacht in furtherance of the company's interests and selling the purchaser this handmade yacht contents is the owner or the company making these statements to further the interests of the company i'm sorry i  that and as i think i told judge a i don't think it's unrelated to the product but to suggest that him making these statements of his own personal experiences converts it into the your product as defined by their policies do meet we have the argument  representation theory and they take the baseball bat he doesn't say anything about the baseball that he says that lead good kids going to play and i know they use with the balls and it's faults he buys the bat and reliance on that shows that find out that bad don't work in a softball something other than the work or product of the insured i mean what what here there's no i don't think there's any obviously he's trying to read into the complaint that there is damage to something else one of the things is not this complaint silent this complaint very specific to the damages sometimes the dilemma you have as a pleading that the circumstances the factual background is very ambiguous as to whether either someone was hurt or what else was happening then you go to the selling experience he was being sued because his sailing experience was you do lose as an assurance that he knew what this boat needed to be able to do because he had had that experience he wasn't being sued because he's never been on a sailboat but fundamentally to do with the whole premise of the ruling blowing the argument is a collateral source rule and and you can go through all the machinations of all the cases and there really to my defend your client had an obligation under a separate contract those are two different sources of two different obligations which have the same subject at the end well not truly trying to do the right haven't the collateral that was the collateral conflict of interest and we decide to have the same attorney and a minor player and so even though rob jointly liable for all the attorney's fees we agreed to divvy it up forty forty twenty and then mine sure of is that i'm your defense i go after him i can't get paid one hundred percent if i only pay twenty i mean that's like to say that the insurance that the insurers would need to pay three hundred three times the total terry speech just because one attorney defended three different insurers doesn't any sense and it makes no difference here the analysis is no legally different than if northern assurance was a separate entity who had an insurer come in and pay this and kevin wanted became an incidental beneficiary certainly no evidence in the record of some sort of obligate that the company did this because of some particular obligation particularly given the allegations of fraud in some of the some of the what the complaint was about the real reason for him trying to p was because i think this plane that had some suspicion about an ability to collect if you really got a big judgment but normally as your honor said you don't see this scenario too much in the coverage context it was not a lot of coverage pieces out there because exclusions are not even a political as long as you sue an owner an officer an employee as you point out all of a sudden will be a rational reason to do it it doesn't exist today thank you please one question