but for my choice i'd like to reserve three minutes of time run or have three points to make st contrary to trial is representations no other court has applied claims against my choice or mine and bar a defense mine who did not suit trust the tech for any claim much less one for an intellectual property violation  st point it's important to note that in arguing to the district courts travelers stated the actual language of the key endorsement which we address in the briefing the actual language states any other personal injury or and critize an injury or suit that also alleges any such infringement or violation in that context the word feet understood as alleged against the insured risks are insured against only claims of a claimant and create a claim or suit to which the insurance of it is also travelers including an action but imo my choice against trusted tech if you look at the actual language of the policy thirteen of thirty is on clear as x points there is simply no cause of action for any form of intellectual property violation and that  a trade secret misappropriation claim which requires great particularities of specificity as court were to find that the errant reference to proprietary information in the counterclaim suffices to dean that a trade secret misappropriation loss as it was so labeled and had all elements to meet that requirement turn on its head the jurisprudence about the difficulty of creating a trade secret case which  the reduction in covered it sets failure to notify the conspicuous reduction in coverage that is the extremely problematic if they don't tell you what you can loss west been taken away  handicapping and it sure defensively needed to assert an underlying claim our counter claim of some kind and effect making to ensure the owner of the rights to a very that was an issue with the s rather than the  end insured against very much cobbled together c n a which also defend this case didn't have that against another is a decision by ticketmaster also of this court's pocking about facts that ensures broader construction based on are wis extent that there's any question as to whether the claims serve that against money could constitute a claim crittle actual property that gives rise to a factual that in the actual dispute occlude any duty to defend either my choice or mr mom in the lawsuit because no one lawsuit involved intellectual property claims the intellectual property exclusion one case having to talk about but i also think and we discussed this in our brief and i would like to discuss with your honor's here to claims that were brought against the insured the trust detect versus my choice cross complain did contain intellectual property claims in addition to of course my choice as affirmative claims well that's not a position that your client  no it is not but it has been fully briefed if at point your honor the california supreme court has addressed this driving at the moment revellers initially as your hon an amended complaint in the same suit a cause of action for mr procreation of trade secrets and travelers withdrew from the defense at that time  no your honor there wasn't and that makes no difference whatsoever legally travelers cannot be punished or paralyzed by accepting a tender a defense that it did not need to accept from california in the scottsdale v v transportation case in two thousand and five dealt with this exact issue and case it was a similar case the trade secrets underlying case scottsdale the insurer accepted the tender  the transportation it filed declaratory judgment action stating that it even though it accepted the tender it's not believed it was necessary after the supreme court which agreed that  to sue for them but the california supreme court specifically says if you make a mistake and defend a case that you don't need to the court can look in hindsight and make that determination  i hear you say of the policy and yet it but you know trying to actually how to respond to that because your honor suggesting some sort of a waiver as opposed  applied to exclusionary claims made  this agreement i don't think is reclaim their because sucks because the insurance company has certain obligations for claims that have not risen into suits but suit that claim does not apply in this instance where clearly my choice a lawsuit against trusted tech its competitor and trust in tech by a cross complaint act against it clearly that is one suit i found that when the my choice for some men a complaint was filed of did not understand or did not interpret its own policy in a given fashion i'm not sure why anybody oh should be required to read the way the insurance company itself didn't figure out here i'm talking about  and it seems to me if the insurance oath can't figure out that the language sort of making my point that the exclusion applies without regard to who has brought the intellectual property claim i think that may be ambiguous for a different reason i'm not trying to argue on that argument that the insurance companies circulate interpretation is meaningful i don't see the l depending on what the insurance company did but it can be made based on this language to apply not to a claim against the insurer i claim brought by the insured against them case we started by a company called max out versus done neither of which policy max out sue done for patent infringement a rd party complaint against the insured foresight but not for an intellectual property violation for breach of warranty of not infringement and seeking indemnity under the personal code that case the court found that even that rd party complaint there was no against foresight the insured for breaching or for violating intellectual property claim because that rd party complaint was brought in the same suit as language because coverage language is about defending ensure means that but for the exclusion of that when the minute complaint was filed by my choice it was provided by mr gauntlet to travelers arguing that travelers should for the cost of prosecuting that chronic lyme this is in the record the declaration of missed sixty six into sixty seven of the record stating there should pay for the prosecution of that complaint because it was quote conducted against liability in other words was defensive in nature but if i could before my time runs out i do need to direct your honour's to cross the plant itself in paragraphs eight court is that many times the courts look at the facts alleged not the causes of action but they allege it stealing or of theft of or invasion of these software keys pricing list confidential data proprietary data all of which are intellectual property and your honor or to affirm district court if they got the right result not necessarily the right reason and the  yes it's important to remember that ambiguity textual it depends on the facts before the court and you can find the purity in the context of the facts even though other courts are basing different facts of  property damage case it doesn't involve personal and advertising injury it cites the decisions of other sentinels decisions it deals with hartford's much broader exclusionary language and the portion of the opinion that is being cited by travelers is clear dick and be transferred affirmatively by the california supreme court in the richard b swift decision in two thousand and fourteen goes on  definition of suit it simply has no clue construction that is supported in that way the button case we reference explains why claim is there there's a claim a claim can create a supplement duty  two thousand and one in the foster gardner decision the carrier would be the st to run around and say where's the suit that is filed against the insured we don't see it that would be their view the counter claim backed allegations on from the california supreme court and explained the concept that some feeds that are not defensive or at requiring a defense can be defensive in character where they are conducted against liability for strategic purposes and it