morning your honour's in insurance coverage action based on the question of whether a standard commercial general liability policy which is generally understood to cover negligent injuries covers the injuries in this case which the underlying court made a specific finding it was that they were based on negligence specifically  faxing was lawful all the recipients consented to receive the faxes in this turned out to not be true this is the same broadcaster and frankly the same facts pattern down to the pleadings that the michigan court of  considered both parties agree that the absence of permission the third party sender did assured that there was permission both parties agree with that yes we don't we don't need to be concerned about the background of that ok i mean i'm asking you well i don't think that's that that's true and i think that that really is the key fact in the case what  think what the district court held was well when you send a fax you use up somebody paper and toner and so it really doesn't matter if you thought that they can senator or not but the problem there is what the policy covers is injury and you don't get legal injury and last year violated the statute or something committed some sort of common law tort none of which happens when you send a fax of somebody who asked for  so as multiple courts have held the mindset is key and frankly this is a case that is almost entirely on all fours with what this court did in standard construction versus maryland casualty the fact pattern there this wasn't sending faxes it was dumping debris the construction company came and dumped on the underlying plaintiffs land underlying plaintiffs said what do you do in and sued him for the damage to the land and to the property and the insurance company said well you went you don't debris on their property there wasn't anything accidental there there's no coverage and this court disagreed i believe in that case reversing a district court and saying now hold on  the the intent there was a mistaken belief in consent here and had the insured bank correct in their belief the dumping of the debris in this spot was not actionable would not have committed a legal injury and that's really there really is no difference between that case and this one another case yeah ok what the policy said i mean you know this a contractual interpretation case so you know do you know what it's standard commercial general liability language the insured to fine occurrences accident yes yes  u say more same same wording both for the occurrence definition and for the expected or intended injury exclusion it is the other half and it didn't it didn't separately define accident this policy says an accident including continuous repeated exposure to substantially the same general harmful conditions that the incur the standard occurrence definition yes  but i think it is i understood judge catholics question was is the word accident itself the fighter ok so they don't and so there is because nobody defines this term there's this body a case law that's cropped up both in this context and other contacts in most states including ohio have come to the conclusion is this course held in the standard construction case that an accident is something that happened in the absence of an intent to injure that an insured can act intentionally but as long as the insured doesn't intend to injure in any way it falls within the occurence definition in the standard c g l policy and it's not expected and tree from the standpoint of the insurer from the standpoint of the insurer exactly and here the insured hired what they believed to be a reputable third party vendor to undertake some advertising services for them and they had no reason to believe especially given the representations that were made that everyone concedes or made that these this advertising was going to be to undertaken in an unlawful way and that u all this stuff and surely your client knew that the toner and all that stuff was going to be used so how's that in x well just like in standard construction that the guy dumping the  debris knew that it was going to affect the area where it got dumped but if it was agreed to if it was invited there is no injury  you agree that we look to ohio cases interpretating this exclusion absolutely and one case that i found to be at least if not completely on point but at least a good guide is the city of willoughby hills case city of willowby kitt hills versus cincinnati insurance company because that's a case it was coverage under similar strictures for a defamation claim in terms of the insurer argued that that shouldn't be covered because that was something and done intentionally the insured s they meant it and they knew it was going to hurt cause the economic injury that it did and that case went all the way up to the suit the ohio supreme court and the supreme court held that there was coverage because the way that that case was pled in this was a pleadings case was that the insured knew or could with the exercise of reasonable care have ascertained that the matter was untrue which is exactly the allegation and really the circumstance in this case that the insured with possible exercise of more diligence could have maybe found out that these vaccines were going where they weren't supposed to but they're the insurers thrust of the is argument was well you knew what you were saying and you knew it was the effect it was going to cause but it's long is i guess the colloquialism that i've heard is that you have empty head but pure heart  these c g l policies are going to provide coverage and that's really the circumstance that we have here and actually this would be the third appellate court to find coverage in this fact pattern involving this broadcaster getting somebody in the hot water under the t c p s a the michigan appellate court as i mentioned did so in lake city and very one one zero five two seven hyphen b which i can provide as a supplement but it's the same broadcaster the same fact pattern the same coverage arguments and the court found coverage brought the good case out of the seventh circuit to this court's attention just is officers of the court to acknowledge that it's out there we don't think that it's right the body of case law out of this circuit as i understand it is that when you get a declaratory judgment action like this case is the measure of the amount in controversy is the value of the object of the litigation which would be the total unpaid judgment of two million the fact that some should it be recovered from acuity would get then get distributed to the class members i don't think creates jurisdictional amount of controversy problem because the litigation is about securing the holes and certainly from the defendant's perspective it's a two million dollar case thank you may please the court i am john travis representing acuity insurance company parties do agree that ohio law applies and the appropriate in koreas are since we just discussed jurisdiction would that fit within your that the the common fund from which the plaintiffs may seek recompense is is typified by this case we have an insurance policy the court routine continuing jurisdiction over the settlement time and i think this is a classic case where we have an insurance policy in the claims are such that the co one of the things we've well are you familiar with the peacock case from the supreme court most from court i can say is aimed at i am not trying to give you a pop quiz but as i read that case it seems to say that there's a doctrine where if a fed if there is a claim pending over which the court does have jurisdiction it's a federal question jurisdiction you know like under this fax statute kate another separate claim over which it doesn't have jurisdiction and i just wonder if that's kind of the scenario we have here i mean perhaps the court would have  the federal claim is sort of already resolved what's the basis of saying the court can go on to resolve purely you know state law issue i think there's more than seventy five thousand  dollars at issue and i think the court has discretionary jurisdiction given the diversity of citizenship well so so you're relying then on the aggregation theory that's one response but there's a common fundus sensually and one of the ok the parties agree ohio law applies and the appropriate inquiries are whether there is coverage in the first instance or there under the grant of coverage and whether an exclusion lies with respect to grant of coverage that page one of fifteen of the policy a provides under the liability business leadville it in medical expense coverage this insurance applies number one to property damage only if a property damage is caused by  accident and similarly there is an exclusion that says there is no coverage if the bodily injury or property damage is expected or intent we need to look to iowa there are cases all over the country interpret ing different state's laws hi is where we need to focus on of course we have an ohio supreme court case that is instructive and i think essentially dispositive allstate insurance company vs campbell we raised this in the in the trial court court of appeals the plaintiff is silent doesn't even try to distinguish all state versus campbell involves a case where some kids were putting up a styrofoam deer in the roadway in the issue was whether the that was if it were but there was coverage or not in the supreme court clarify that link are made what happened what was the kids were putting a styrofoam target beer in the roadway and they want to see what happened when the motorist cable long and they were amused by what was going on in the supreme court looked at the inferred intent dr what happened though i mean what's the end oh there was a bad motor vehicle accident someone was injured are they so they were in was the kids were negligent and there was an injury and the supreme court says wait a bit this is not an occurrence it's expected or intended and the supreme court laid down the law in ohio and the court explained that if the insureds that in the harm are in st intrinsically tied so that the act is necessarily resulted in the harm there's no cover so that's the test now in ohio whether the act necessarily results in the harm and the act in the harm intrinsically tied in the court looked at the facts this is well there was another motorist that went by we're not going to say there's no coverage because the air in the harm are not intrinsically tied that's the test in ohio it's relatively recent the supreme court clarify and that's why that other six circuit case is not a a appropriate reference point for determining the coverage question presented here so that if you let me ask you a question then so it might depend on how you define the harm and let's say that i ask your office to send me a fax at my and and you say ok fine and do it and fax comes out and it uses my toner and everything and and you know and i get the facts and i wanted the facts have i suffered property damage within the meaning of the policy yes even though the claim that's the point you look to the courts are confusing the difference between liability and coverage and as a judge when observed in many courts say it's impossible to second that it's accident then or it's not something for which the insurance company policy affords coverage policies don't cover everything under the sun that just you have to look at the language of the policy the property damage but here we're trying to you're you're trying to enforce an exclusion it's both the occurrence and the exclusion the analysis is very similar the the grant of coverage says the insurance applies only to property damage if the property damage is caused by an occurrence which means an accident that's the burden of the policyholder yes insurance companies have the burden with respect to exclusions but what it says is that the property there's no coverage of the property damage as expected or intended how can you send a five fats without having the toner in the paper in the  in the record or whether the parties agree that this was simply negligence here's the stipulation and page six of eighteen we say we stipulated that the defendant was solicited by a fax broadcaster that represented that its fax advertising was with the permission of the recipient that's what the record shows it's all the l a asked that's it that's it so we don't there's nothing about the a mile to go far beyond that it was thought to be with permission that's all i i want to confirm that i'm sorry or any it's really not even that far it's just that the defendant was solicited by our fax broadcaster that represented the facts would be with their permission doesn't say anything about the state of mind of it it was never a feature of th litigation it was not contest that and it doesn't really they're ok because we do have to look at the policy of insurance the supreme court a while has told us that if the harm and the actor inextricably be to hide there is no coverage it doesn't mean that they're there it doesn't essentially go to whether there is a viable cause of action i think courts sometimes confuse the two the park university case for example focused on the asserted belief of the policyholder that the facts as were welcome whether the facts was welcome or not doesn't change the policy of insurance doesn't change the law doesn't mean that there was unexpected  arguing that the property damage must be accidental it has to be an accident yes that's what the property damage itself has to be that's what the policy says but the policy seems to say the property damage has to be caused by an accident correct which means accident caused by an occurrence which means that's right and so and if ever it was i mean couldn't you have an occurrence that's accidental which has a result that was totally forseen but they didn't mean to cause i guess have the occurrence have a new currency is a thing that has to be accidental not intentional supplies to bodily injury property damage only if the bodily injury or property damage is caused by an occurrence so it's not just the negligence the property damage also must be accidental that's the point of custom angry and th point of it that it forces camp ok now understand your argument i interrupted you earlier you were about to distinguish standard construction yes well it was before all state verses  gamble in this before the supreme court of ohio clarified what the law is in our state it's not the same it's not good law in your view it's not reflective of ohio law as articulated by the supreme court currently think you can draw distinction between a situation where someone accidentally goes on property and in doesn't know what's going on versus a situation where the the person who's sending the feds knows necessarily that there's going to be a loss of use of toner and paper in the fax machine is tied up let's say i mean the facts were and i don't remember those fact i pray i don't know the facts but if if the debris let's say was dumped on a l and the the dumper thought they had the permission of the along owner but it turns out they did the dumper knew it was going to kill that area of the law so the people had to buy a bunch of s and they knew that was going to happen the dumper did doesn't that isn't that kind of the same case we have here that you know the result was certain but they say they thought they had permission they didn't therefore the occurrence was accidental therefore there is coverage it would not apply here if that case is good law certainly that's one of the arguments that my compliance with the law of the century we don't know what the state of mind is it doesn't really matter because this case of every by the allegations of the complaining what the policy of insurance so you would you would quarrel with the implication that there was permission as being taken by the by the this company it's not in the record not in the record but that wouldn't be a  logical i mean it couldn't courts couldn't take that i suppose you could draw the inference but when you're looking at the the policy of insurance at doesn't change we think the judge when got it right and he pointed out that faxes whether solicitor not cause property damage because they the private recipient of the use of his fax machine and consume toner paper and again we're looking at the policy of insurance and it may strike some people as being one of the really should be coverage here but it's to rewrite the policy or make judgments as to what we think should or shouldn't be covered i think we ha thank your honour's with respect to the campbell case i did it basically stands for the general proposition that if you know a particular harm is going to reach a result from your act a particular legal harm in that case then that is what is not covered the problem here i think oh it's case in your brief i can find all state campbell it is not it's in his mouth and so the council didn't have any notice i'm going to stand up and make that kind of you're your centerpiece already in this argument campbell mr travers yeah mr trigg mr travers cited it oh i'm sorry mr travis and he relies on it and he's with me to sizing where intentional acts lead to unintended legal consequences and i think that the issue about what the policy says is a crucial because what it says will pay those some of the insured becomes legally obligated the pay is damages because of property damage it's long if it's caused by an occurrence so as long as there is some sort of accident somewhere in the chain leading to this legal liability it falls within this coverage grant and in this case the undisputed fact is that this insured gave the go ahead for these faxes to be sent after being specifically told by the broadcaster that what they were doing is legal not unlike any business interaction where a third party vendor is hired to perform a service they represent that they're going to perform the service in a way that complies with the law you expect that that's what's going to happen it didn't happen here and these guys g tagged with a seven figure judgment it is warily within standard construction ohio says nothing different then today than it did then nor did i think standard construction actually is a tennessee case but there is no case law out there whether in the briefs or otherwise that says that ohio's got a different standard than tennessee and frankly ohio's got the same standard in this area is michigan in that's why the lake city decision which thoroughly analyzes these issues in the same fact which point supreme court case do you point us to to best serve your side of the argument probably city of willoughby hills and then there's a more recent case which we discussed at length in both briefs which is a scaping my because we talk about respond to that in your reply brief with we do we do and in our opening brief we talk at length about a very recent ohio supreme court case someone or you both speaking about the same k now a different case well i'm asking you to respond to mr trav that's his argument to us that the legal harm when you insert the paper in the machine at this and it's going to draw from resources at the receiving end that's not the legal harm though if it was welcomed in vite it there is no legal harm that's your response that's the issue yes but the use of resources aside the use of resources is the property damage which results from the accident in terms of belief and consent just like the destruction of property in standard construction was an accident resulting from a mistaken belief just like in city of willoughby hills the ohio supreme court said defamation based on injury from something intentionally said was covered because they didn't know it was a 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