mold of the apple we cited authorities on those two fronts there are several reasons why the trial court's summary judgment orders and the yeah police favor should be reversed chief among those reasons we including the umbrella here years are concerned is that the underlying allegations contain or the underlying actions i'm sorry contain allegations joinder one seventeen your honor and it's based on the death their argument is based on the definition of sexual abuse or sexual molestation in their policy that definition says sexual sexual abuse from sexual molestation is defined as the infliction of harm whether the harm is physical psychological or emotional they put emphasis on the word inflict to say the actual physical acts of sexual abuse have to take place within their policy periods in order to trigger coverage i say the focus of that definition is horrible harm appears twice it's won't let me you know one person listening fight arguments the word inflict versus harm and what's the proper focus you know here we're talking about how first not profit sold the jesuits sexual abuse or sexual molestation liability coverage are measured by where the the injury manifests itself in view of the fact that we presume with sexual motion station injuries return it's well injur rule that because people can manifest injuries well beyond when they're hit by the car that you know that they should be allowed to seek recovery for those injuries it's based on the specific policy weighing wage and that if kroft it wanted to make it clear that there are only covering if the action if you abuse the physical acts take place within that six years that they insured the jesuits there was a way to say that and the station was no i again i think there's a way that it could be written to say you know the actual physical abuse has to take place within our policy period in order for us to provide coverage and that just wasn't done here and again to say something about that today the underlying actions assert potentially coverage make widgets claims the underline actions talk about and allege that the jesuits were negligent in  managing father grier in his world was a priest and a counsellor and a teacher and that the jesuits were negligent in monitoring his whereabouts and his activities which children those allegations do you know i with he can be wilson obviously was tossed around there's been a lot of argument about that but we used in the trial court that was their case you know it at the point he can be wilson became an issue the jesuits of actually one summary judgment on the duty to defend the trial judge who decided that that the negligence counts did state in a crimes alleging occurrence and that you know there was enough there to say that there was a duty to defend o to you can be wilson gets decided first nonprofit leads the charge comes in and says you can be wilson revolutionise how we will get duty to defend analysis and because of that judge you can look at the entire earth the like a third party complaint in order to assess whether there is a duty to defend on appeal i think it was telling that all of the apple users kind of backed away from he can be will saying almost conceded that it doesn't apply and now othe p can be wilson author raised the court to when you have negligence counts for negligence allegations right alongside allegations of intent actually knowledge got co existing types of allegations having trouble understanding how that makes a difference that there's negligence versus an intentional allegation there's still that and it's a it language fall on what the jesuits intent was towards the john doe claimants were that their expectation the jesuits expectations were the the intent component isn't present in the negligence claim and that's why the negligence claims and allegations take that exclusion off the table and trigger the duty to defend there is no component in proving the jesuits were negligent that requires the john doe claimant well it's distinguish were definitely on the facts the jesuits can't be wakin to the spouse in that case you know yeah police say well in that case you know the spouse did exactly what the jesuits did she let these kids into work home and didn't her basically on par for inferred intent purposes and say you're no different than the husband here and you should have reasonably anticipated because of your own conduct that these children were going to be harmed the second component to the westfield case that i would distinguish is this notion you know that there are in that case there was no way for the event or the spouse's conduct to be characterized as negligence she was positioning the kids on the lap of the perpetrator she was encouraging kids to watch pornography she facilitated discussions with the children about pornography that can't be characterized as  well the undergoing actions from their inception contained negligence allegations that's also what makes this case different from those cases that the our police say where the twit picks  n victims are accused of conjuring up negligence claims to manufacture coverage or hopefully complete their claims these cases oh wait it's had negligence allegations running through them the change that you're referring to was in the initial complaints earl of the facts the general facts about how the jesuits had actual knowledge and it was this cover up those were incorporated by reference into the name counts in the original complaint on amendment that was not the case on amendment there was no incorporation of those earlier factual allegations that that's the difference between the original and amended complaints but defect and before you me run a time on me i need to address the issue of the missing portions of the pennsylvania general housey so all right this is going up and down once already aspect it looks like when it came back to us the second time but let's say you know it in terms of your clients you're asking for coverage on a policy that you can't produce either directly or through discovery from the other side so where does it leave us in terms of forcing coverage i'm not the duty to defend case i will tell the court that it's an indemnification case but in that case same fact pattern is what we have here there were co existing allegations of nate which ends negligent supervision along side allegations that the diocese knew about prior instances of abuse by a priest and in that case it was an occurrence there was a it was found to have pled in occurrence nobody case where the same approach there are these allegations co existing negligence and all of these bad how we gave out actual knowledge of prior incidents incidents of sexual abuse by a priest and again the finding was no the negligence allegations are against it and a complaint and then his saying you would never see the point if by the way the point is please can strip the defendant of the right summer insurance policy that's not correct the plaintiff defines what they're seeking recovery under in their complaint the plaintiff states the their their facts on which they seek recovery and this is a question of a liability policy was the defendant's liability going to be for it's going to be for those facts as alleged if proven at trial it's understood of course that if and i would i would posit in every case we've read in history of the number of claims the number of secret settlements the continuing a bad boy staying overnight in his room traveling the world with a teenage boy by a side look at these facts and say any rational at all wouldn't wouldn't know what's going to happen  pedophile given unfettered access to children with no warning to the public no warning to the members no warning to the parents you know letting him post you camps and travel the world with kids is the essence of an expected injury  are either factual distinctions between the wife in westfield and the the church here yes of course the special cinches in any case but the fundamental underlying principle of facilitating access to a known pedophile is exactly the same sure he didn't you know put that they did put the little girl on the lap but they let their stay overnight in this room they let boys travel the world with him they knew he was a pedophile and let him participate in these camps didn't want anyone holding out as a priest in good standing repeatedly despite having secretly confidentially settled numerous cases against him and knowing better and you have to check common sense at the door to say they didn't expect they couldn't have reasonably anticipated exactly what happened contractually agreed to pay for a defense only if the claims alleged so go back to the four corners of the complaint if true result they covered liability and drop policy we're not saying if the insurer disputes liability we always have to defend and  i i am i would be stunned by the set every case cited and everyone's briefs where i do to defend was discussed the defendant didn't deny liability that can't be enough to say you can't apply solution because you know bedfast it corners analysis course the complaint the four corners of the policy i understand in pekin they look into a counterclaim but in pekin there was a specific issue also of self defense which i think as the supreme court said under the particular language that policy self defense would would naturally be believe probably usually the case but is irrelevant as to the liability coverage analysis because the liability coverage analysis especially in a corner state like illinois is premised on the truth but the plaintiffs allegations are true is there coverage and here i understand the one nine hundred sixty nine meaning i think it was spelled out in detail because i haven't seen a lot of these cases around the country through the years the players tend to focus on the specific meanings of things that they know they can specifically prove there are absolutely allegations  that in the intervening years between then and when these victims were abused which is primarily the late eighty's ninety's and into the two thousand in those intervening years there had been other instances reported there had been secret settlements reached there had  been an effort to move father maguire and conceal the allegations these were all specific specifically pled in every complaint as well so i understand that the one nine hundred sixty five to sixty nine loyola time period is the jumping off point but it's not the end all and be all they carve out this negligence count as some as a standalone doesn't fit i you know are there other types of cases and other potential theories where that might work but eventually but not this case not these allegations of this that just if i buy a square peg in a round hole i mean that's th case is absolutely premised even as amended and always from the start even the negligence count premised on the knowledge and the receipt of reports and you know purposeful and conscious conduct by the order moving follow mcguire around concealing it settling claims that that is the so what hating the abuse every bit as much as the ants facilitating if you send westfield it's just by a different vehicle and just as the aunt had knowledge of the perpetrators prior becomes aware of it during a policy or two so from that point forward you may well be able to make an expected nintendo type argument but i believe that's one big distinction and i see some perhaps explains why the excess carrier in that case was not  challenging occurrence and accordingly i think an issue not addressed and not argued a case can be cited for authority to decide something that wasn't you know that wasn't argued before it and i think the facts of that case reveal the reason why firstly it's just area wins anyway if he gets two years triggered of a perpetrator are informed of any allegations even of sexual abuse by the perpetrator and there's no further coverage under the policy with respect to any later actions by that perpetrator and there's no further coverage for anyone with respect to actions by him so it's not illusory coverage still covers the jesuits if anyone else is accused but not if this further actions by him now it's interesting because in the first versions it of one one six one seven one one eight one nine and even in the amended version one wants sex all the other their the principal there the president or if you want to put it in terms of school districts the principal and the district superintendent in the game which are the three people who are alleged to have been attending that meeting he there definitely somehow come within the special coverage and they do that through the negligence counts and each of the money complains which of the following complaints because one twenty nine had not yet been play no one thirty they're all so that we're not stuck with this summary judgment so let's leave out the father schleck story however they couldn't leave it out intentionally because as you pointed out they have to have notice for a negligent retention and a negligent supervision to a pl so instead they say well they knew from the nine hundred sixty s of numerous instances they being the jesuits and yet didn't do anything about well once again they have there was so condition one a still applie order to plead caution reaction magazines in my state and if they're there then you've got your your your argument is you've got your school absolutely absolutely and they are there even in the amended complaints the definition of sexual abuse as the infliction of harm well if if you're inflicting the harm by definition that means you're doing an act so here it's well so you've got those allegations even if they even if they left the father schleck story out of two and didn't just say they knew about all these other cases you have to read the  it please the court my name is ashley kahn hand and i represent the achille pennsylvania general insurance company given that the expected or intended exclusion and current issues are to been argued i want to spend my brief time talking about the issues that are unique to pennsylvania general policy that have been available and something in general the jesuits have not produced any other policy forms or coverage is in response to the summary judgment motion and they simply claim that there might be some other form out there  of the relevant provisions of the policies and all of the documents that pennsylvania general has were attached to the summary judgment motion and these are the actual policy provisions that were issued to the jesuits it is not some sample form that and well friends where in this case our affidavit shows that it's the actual policy provisions that were issued the jesuits that were closed and in fact looking at the policy materials themselves is that it is the declaration is and schedule policy issue since the remain and it's and discovery in the underlying case and you know as far as we know formal responses have not yet been submitted is that there are no other policy provisions that the jesuits have provided holy sea provisions the same general liability provisions and the same pastoral counseling professional liability provisions which i would like to point out that they don't dispute that these are part of the policy they don't claim that it's that the pastoral counseling doesn't apply their position is just that there's perhaps some other form that may provide coverage but they have no evidence to create an issue of fact and that's preclude summary judgment and it is appropriate to issue a substantial ruling in this adjudication on the merits and respectfully believe that the rule twenty three order was issued without any oral argument and without any opportunity to explain how this case is not like well friends with and how we are dealing and and your honour's briefly there is no coverage on their test or all professional liability enforcement which is unique to the pennsylvania general policy because the claims in the john doe parents who do not concern pastoral counseling activities simply the sexual abuse is not any specialized knowledge skill or training as a pastor world counsellor and is an administrator back much much like the american mutual insurance company vs and right case that's for those reasons there is no coverage in the liability endorsement and the trial court's decision should be affirm no i also want to briefly point out apparently there was a suggestion that i'm might have some how we did this policy for michoud by including you know i'm saying there's no making arguments about that there is covered under the pastoral counseling professional liability coverage i specifically in our brief said you know that i'm kind of in a catch twenty two here we have policy forms issue and specifically noted in the brief that i was not at all by putting that language in my brief waiving any issue with respect to the policy forms issue i also want to point out you know there was a point mentioned about you know that we opposed consolidation in the underlying case we weren't the only ones that did hasn't started actually in that remanded case nobody's exchanged anything and so we have that's why we there's no there's no new information at this point i have to address feel compelled to address a couple of things about the arguments and condition one day by first non profits attorneys the misquote their own policy the condition talks about if a jesuit executive officer supervisory employee trustee or director has actual then there's a meeting the president the headmaster and the principal of oil a cademy were there we don't know what ranking any of those people have within the jesuit organization it's not a ledge and it worker supervisory employees within the it's within the jesuit organization we're like had been might have had prominent positions at loyola academy that doesn't mean the whole prominent positions within the jesuit organization are the there in the upper echelon of the jesuit ranking we don't know because it's not led and it worked or for them to get there they have to add substance to the underlying complaints that isn't there that's our argument on condition want to say and i happen to also would it be th well i again i don't know what the midwest provincial or somebody but i i understand went under the rubric of complaints or read liberally in favor of coverage and the like those kind of axioms that we have an illinois i just don't order to say that condition one a invalidates coverage for the jesuits perpetually for all these points and i have to address the snowshoe in that the snake which once count can't stand on its own without these actual knowledge in the meeting allegations back in the one nine hundred sixty s you know the elements of negligence duty breach proximate cause damages it doesn't involve anything about  what they're claiming the jesuits did negligently is supervise negligent to supervise negligently retain ok you've got in this factual context the jesuits are headquartered in chicago you've got a priest traveling all around the world doing horrendous things that you shouldn't be doing and you know he's just able to do all that i mean but none of that has to none of that kind of a claim doesn't mean there has to be proof that the jesuits had harm that resulted without having knowledge of at least that well it wouldn't have to necessarily be actual not lage it could be a constructive notice type of argument something less than intent something was that have suspected but it doesn't it doesn't have to be that you know it i disagree with the notion that the negligence counts can't stand on or in it's can't stand on their own or it are entirely reliant upon that subset of allegations of actual knowledge in the complaint if the judge if if the underlying claimants can't prove actual knowledge that their back position is negligence that's clear it right away and again those that a claim might trigger coverage and that we've got to read complaints liberally in favor of coverage and that when you've got covered counts and non covered counts the duty to defend still exist i submit the summary judgments have to be