there on behalf of the appellant's iron shore insurance company present this argument beginning with the fact that this case arises from two accidental drownings occurring july fourteenth two thousand and ten in pella iowa during the week of july twelfth two thousand and ten there were one hundred seventy seven campers who attended the fellowship of christian athletes camp that was at central college pella iowa two of the campers gail chris been and names in santa and were the two boys who tragically drowned in the pell aquatic center the third day of the camp the two boys drowned on the evening of july fourteenth two thousand and ten now the two boys there are some differences in their attendance at the camp the camp was organized according to various sports gail chris been was attending the camp as a basketball player so he was in a group that was limited to basketball players c n n was a football player and attended  this camp as a football player was part of a group where everyone was a football player now as part of the supervision of all of the campers the fellowship of christian athletes appointed what they called huddle leaders to the various campers now in galle crispin's case the huddle leader was jason anderson and in a sand case the huddle leader was josh snell or so those were the two boys i mean the two huddle leaders that had general supervisory authority over the respective two individuals involved in this case and what to do the huddle leaders would be the first line of supervision there living there with the with the campers in the dorms there older individuals these would be older teenage boys that then keep track of the seven to ten campers within each of the huddle groups there actually the whole groups are assigned numbers and each huddle group th has a leader that's responsible for looking after and addressing the needs of the campers that make up that particular group now on the evening of july fourteenth two thousand and ten all one hundred seventy seven campers were transported to the pella quad accent which is the public pool in pella iowa and they arrived about eight thirty they had reserved this this location so the only people that were there at that time were the f c a campers there were no members of the public that were there or lifeguards there the huddle leaders were there so the f c a had the pool to we do know is that at nine o'clock a twelve year old observed the basketball player who is gail chris been struggling in the water and the day after this happened that twelve year old gave a pretty compelling statement to  the local sheriff's department where he describes seeing the basketball player struggling in the water flapping his arms and then he didn't think that he was pretending that he thought he was in trouble and he saw this individual go under the water and then pop back up for a breath go back under the water again and then he saw the body floating three feet below the surface of the water well i'm just curious because i don't think trouble he alerted his mother he went and told his mother who was at the pool and convinced him that what he saw was well it's not a serious situation now significant from the statement is there's no indication from this boy and again the board doesn't definitively say that chris been drowned but it sure when you read the statement it sure looks like this is a boy that that probably did drown  immediately after he was seen i think by you know preponderance of the evidence standard you would you would think that that that that boy witnessed the drowning of one of these two people he doesn't give any indication that the other boy that drowned was was there at the same time dragging the other boy down that they were that they collided in the pool so there's nothing to connect the drowning of crisp and with the drowning of santa and in fact it wasn't until nine thirty when they went to load up the buses that they realized these two boys were were missing and i guess tragically the lights in the deep end of the pool were not working and that caused the people that were there because people looking for them there's lifeguards looking for them they're huddled leaders are looking for them but it took them twenty minutes to find the bodies of these two boys in the pool because of the dark and murky conditions of the water so again we're left not knowing during that one hour period of time when did when did chris been drowned when did senator graham i think one port point that's absolutely critical to the issue that's raised here and that is that the pool party was described as the pool party is not the occurrence and i think that axis in the statements it makes in its briefing on page twenty of its brief it talks about a single discrete pool party and what it's trying to do is use language that is in cases of about one occurrence versus to a current situations and is trying to describe the pool party as the occurrence and how do we know that the pool party is not the occurrence what we just have to look at the access policy and i'm quoting from page six of the axis brief where they quote their policy and they say the axis policy defines occurrence as an accident including continue to repeated exposure to substantially the same general harmful conditions so the word accident is in the definition of occurrence in axis policy that's at issue in this case the pool party wasn't an accident the pool party was a planned event and while in our normal day to day conversations we might think of occurrences as being things like musical concerts or sporting events or a pool party that's not what the policy says the policy says that an occurrence is an accident now the policy doesn't define accident but the missouri courts have defined accident in a two accident as designed unexpected event and undesigned an unforeseen mishap resulting in an injury to or a person or damage to a thing a casualty as to die in an accident so we see the word accident in the definition of occurrence and then we see the word occurrence in the missouri courts definition of accident so what we have at the pool during the pool party are two accidents and two occurrences because the drowning of c n n was not planned it wasn't expected it wasn't intended it was accidental as a coroner's report said and as everyone agrees the drowning of sanin was also an accidental drowning now axis relies primarily on two cases the kalen case which involved a motor vehicle accident and in the killing case you had a motorist the negligent motorist was trying to pass another motorist and in attempting to pass he struck a vehicle an oncoming car and then almost simultaneously he struck the vehicle that he was passing and under those facts the missouri court said well you've got to impacts that are occurring almost simultaneously so in that case we're going to treat that as one occurrence but the established this time element in the space element and the language that they used was almost simultaneous now the other case that access relies on is a court of appeals carry excuse me an unpublished federal case from from missouri the macby case which is a dog by case and in that case we have one dog that excuse and bites two people that are jogging by at the same time and in that case the court said the accident was the excuse of the dog different than the situation here here we have a situation where we have two different campers neither one of which of part of the same hostile group they were there attending the camp for different reasons they sent in they both sent in forms separately saying that they couldn't swim so all the facts in this case suggest that we have two accidents and therefore two occurrences albeit occurring within an hour of each other but otherwise unsimilar and dissimilar in all significant ways now the district court in its ruling said that there's really no cases missouri cases on point and i think both axis and i are unsure have agreed with that despite the fact that the district court said  that there are no kisses on port it didn't go outside of missouri to try to find any similar cases in our brief we cite a number of similar cases in which boys died of boys drowned in circumstances similar to those circumstances of the pill logic center in which courts held that there were two occurrences rather than one there are a lot of cases including federal appellate cases from the fifth circuit and the seventh circuit that we rely on heavily in  which under negligent supervision theories which is what the theory is in the underlying case and there is of negligent supervision cases where courts have found even applying the cause analysis that axis wants this court to apply and that we agree should be applied courts have found that there are situations where the same kind of negligent act can occur several times with separate injuries producing several occurrences that's from a seven circuit case the leak case and i submit that that's exactly what we have here we have similar negligent acts negligent supervision by the f c a and it's employees of two different boys independent acts independent duties discreet acts leading to the same unfortunate and tragic result they just happen to happen within an hour of each other on the same evening at the pella aquatic center if i may could i reserve the remainder of my time  one occurrence or two occurrences indeed we'll leave that up to our insurers and their counsel to argue those positions on behalf of their respective clients we do believe that the district court was correct in as much as determined th insured policy and the r s u i policy does not come into play until the full limits of the underlying two policies are exhausted no one disputes that fact in the case and consequently as with the a our client takes no position on whether this tragic accident is a result of one or two separate occurrences obviously we defer to the ruling of the court in that regard let's a court has further questions that's all i have to say what's  it at accident including repeated exposure to the same general occurrences good morning your honor my name is lisa works woman and i'm the attorney for axis insurance company i apologize out of the box i have very very bad allergies so if you have trouble hearing me please let me know and i'll try to speak up this morning i'd like to address basically two points in some detail before i do that though i'd like to respond to something that was addressed earlier remarks of counsel for iron sure this morning you heard a lot of purported facts those are facts that i think if you review the record you will see they're not in the record and this leads me to point out to the court that this case came to the court on a very what i'll call the previous basis the underlying case is still pending in iowa state court and in fact the case is now on appeal on an issue unrelated to the issues that were here today as a relates to sovereign immunity for the city of pella so there has been virtually no discovery done in that case there's very little record from that case and a lot of the information that was being imparted to you by mr jones today is information that came from various documents which may or may not ultimately be evidence in a case should those evidentiary issues be raised or those factual issues one of the questions and specifically was the question was well what do have group leaders do and that's one question that i think if there were full of factual determination there would be a significant amount of discovery as to what the whole group leaders responsibilities were on the date of the tragic drowning those are questions of fact that we don't think are properly before the court at this moment in time we will walk out of all we believe the record was sufficient for judge whipple at the district court level to determine that there was one occurrence under the policy which he did so based on the facts that were stipulated to and not in controversy if for some reason this court has to determine that there is a more significant factual level of inquiry required for instance if you believe that the issue is one that almost simultaneous which is the issue that was raised in the brief are unsure or if you believe that the  immediately preceding the drowning of the two boys are relevant to a determination of cause then i in all likelihood those are issues would be determined through fuller factual determinations at the trial court level and into different situations but this goes back to exactly what is my point there's not been a development of a factual record i can't as i stand here today tell you when the boys drowned what each boy was doing as they drown that is all issues that would be developed further in the factual discovery either in the underlying case or in the trial court level of this case where those issues to be p my point in saying all of this is that judge whipple found as access argued that those kinds of fact issues are critical to the determination of whether there is one occurrence under the insurance policy was not required to find that the two boys died simultaneously in order to find one occurrence the cause for purposes of the occurrence analysis is a series of related acts which began when the f c a the fellowship of christian athletes sent the boys to the pool party knowing that they couldn't swim and without any measures to assure their safety and because the boys drowned as a result of the exposure to substantially the same conditions it's one occurrence under the policy the critical language of the poll say and and that definition is an accident including continuous or repeated exposure to substantially the same general harmful conditions judge whipple found that the boy started as a result of exposure to the same general harmful condition and that was the basis of his one occurrence really well this decision by the district court is based on the allegations of the comply and the language of policy would you agree with that at this point the factual develop that really is is irrelevant it's been lately we're looking at what the what the allegation of the complying is what the cause of the proximate cause of these deaths as a in the comply i would agree with or iran i think there are certain facts that were stipulated by and between the parties which may not be specifically alleged in the underlying complaint those fact part of the record but basically the issue before the court is the cause of action that's being asserted or the claim that's being asserted in the underlying cause of action in that regard the underlying complaint basically i think it's to enter the aquatic center and did not take any action to prevent the boys from entering the water or other precautions for their safety that's the critical allegation in the underlying complaint there is one count of negligence against the  swim by failing to properly train and supervise the camp counselors and by taking the boys from the camp to the pool when they were unable to swim now i've already pointed out the access policy provision  regardless of the number of insured the number of claims made or the persons making the claims so when you read those policy provisions in conjunction thank you the basis for finding that this event this last constitutes one occurrence the focus isn't on the term accident the focus in their cause ation task that's been adopted in missouri and applied in missouri is on the conduct of the insured the insured is the fellowship of christian athletes and i want to talk about that a little bit more but before i do a couple of things i'd like to just point out that i think it should be clear to the court i am sure does agree that missouri law policy have been interpreted to provide only one occurrence the limit for all claims caused by the same occurrence i am sure also agrees that missouri employs the cause test in determining whether there is one occurrence under the pol this point in time we don't know exactly when those boys died that we can't meet that almost simultaneous t considered a single occurrence for the purpose of determining coverage limits under an insurance policy the accident isn't the pool party the issue in this case is the cost the negligent conduct and here that they sent them to that pool party knowing they couldn't swim and without additional precautions for their safety they d the there are basically three cases that are described in the briefs and those three cases are telling the mr jones referred to make be in another case called  differences there's a lot of issues made about the responsibility of the camp counselors but there's no evidence in the record that either of the camp counselors had any different responsibilities than any of the twenty one camp counselors that attend school there's no evidence that these two camp counselors had specific responsibilities with regard to the boys well they were at the pool those are all issues that if that becomes the task requires the case to be bridge with counsel suggestion that i'm making up facts i would say that all of the facts in my statement of undisputed facts are contained citations to specific parts of the record and i would encourage anyone that has a question about that to look at the parts of the record that are included in an appendix that fills up two volumes because it's so big now access may not have done any discovery in this case it may have relied on the fact that it could go back and do discovery at some later date but i did i sent out in iraq a toys i sent out requests for admissions and in the a dent i'm that i put in this case i use the responses to requests for admissions by both a and fellowship of christian athletes i put in in iraq a tory answers from from axis including the answer to iraq atory eight in which they said as it understands the phrase axis is not claiming that gil sand salmon drowned simultaneously and so now they want to go back and say what we want to do some more discovery to figure out if they did drown simultaneously they've had that chance i filed a motion for summary judgment they didn't ask for additional time to do depositions or to do discovery the record is there and i believe that the record clearly shows that what we have here are two accidents we have an underlying case an underlying case where the claim is negligent supervision and when i filed my brief made circuit brief axis filed their brief and they said well this isn't really the underlying case it's a really a negligent supervision case i'm not just making the simultaneous accident argument that's issue number one that shows that we have two accidents here that are in fact two accidents also make the argument that we have different levels of supervision we have negligent supervision claims we have different teams of command for these two boys as i've said before this hauler case that i didn't talk about before the holler case involves two people on a motorcycle that were involved in one motor vehicle accident they got hit by a car and the passenger tries to make a separate claim from the driver the motorcycle mccourt's said oh that's one accident that was the right decision there it has no bearing no relevance to this case i see that my time is up and so i would thank you what was thank all of coun we will be in recess for about ten or twelve minutes before we go to the last case of the morning