my name is will tom once and i represent great american which insured whispering lake the owner of an apartment complex in kansas city missouri by granting summary judgment for the plaintiffs in this case th effectively held that no reasonable jury can conclude that it could be gross negligence to kill a child while firing a weapon to celebrate the fourth of july this case turns on  let me ask you  guess there is a dispute and we say that it shouldn't be in other words this fact scenario in this case isn't the type that wal mart contemplated in other words wal mart contemplated a situation where we can look at the facts after the settlement or whatever and we can say we know how this would ultimately turn out and we're just going to take a short cut get to the end it's very hard to know how this will who's going to turn and that's why walmart do apply here now it's a little bit more complicated that we've addressed in our briefs but a walmart doesn't apply then you apply the language of the insurance policies to determine how you allocate between the various insurance companies and it becomes an issue of law but th primary carrier and under policy language we clearly have to pay first federal agreed to pay immediately after is there and so if you're paying second great american it's policy it's policy that other language is in the other insurance cost back in the conditions provisions of the policy not in the basic insuring clause and the case we cite from california looks at this and says you have to decide are they at the same level in other words the other insurance clauses are really decide what happens when you have a draw and you and between two insurance companies at the same level we don't have that here in other words it's clear from the federal our the great american policy the under the basic insuring clause that it comes to last well it seems to me and you know i'm speaking for myself that if we agree with your premise that the matter of gross negligence is at a minimum issue for the jury or even go the opposite extreme which yes i also i think your position that that could be decided as a matter of law that this is gross negligence that all these other issues probably should be sorted out at the trial level that rather than i was trying to look at these policies and figure out is the indemnity agreement control or not if it doesn't who w how i mean that the best way i would look at it now am i wrong about that well it's an issue of law and obviously this court can enter the judgment that the trial court should have it should have entered if it's a that was also if it's not gross negligence you pay if it's gross negligence they pay well well i think to follow up on that isn't it if we were to agree with your position and it as a matter of law is gross negligence is anything left to be decided or is the case or if you find as a matter of law that it's gross negligence then the case is really over it would have to be remanded with direction because we had a counter claim that was never we didn't even ask for summary judgment on that but if their ruling was just as gross negligence then the court would have to view our town or claim and lied on that decision but that this gross negligence issue is that is not a matter at this point where all the facts as i understand it all the facts are essentially agreed to no dispute of facts you may correct me they are but if that's the case is there anything for a jury to well solder isn't this just a legal legal question what your honor it's also the inferences from those facts now the words were entitled as the non there is a there is pretty much agreement is what happened i mean he shot this little girl while celebrating for the fourth of july and he pled guilty to manslaughter in the first degree which requires recklessness so those facts aren't save the owner free and harmless from any claim arising out of or in connection with gross negligence on the part of the man who can agent or any of its employees and so that arising out of language this court in spirit said that's very broad their whole point with the court was just look at the pleadings and you know what these gross negligence for they don't mean anything because in missouri we don't recognize gross  negligence at common law that's true there are no there is no port of gross negligence in missouri but that doesn't mean missouri doesn't recognize that a contract i cited a case for your honour's where it wasn't forced in a contract when you use it numerous times  was the owner and the managing agent contracted for this and they intended those words to have meaning you can't read the indemnity clause without concluding that there was no intention for the owner to indemnify all negligence clearly put in gross negligence there was some level of negligence that the owner was not intending to end in a fight in fact expected the managing agent to indemnify them and so that's the dividing line of gross negligence in that consider the manslaughter plea and conviction because at least the four circuit st paul fire cases they just look at the underlying pleadings well st paul doesn't really what they say yes they looked at the pleadings but they also state and the underlying facts alleged are consistent with that and they said there is no evidence in the record from which someone could conclude gross negligence if you look at this record there is plenty of evidence from which someone could find gross negligence including the guilty plea and in fact missouri supreme court has said it's collateral spottable the underlying pleadings pled in negligence count right well they said it was a conscious disregard for the safety of other people so the clearly the underlying pleadings in this case in this case are nothing like those in st paul where it was a food poisoning case somebody ate something in a restaurant  had some contamination with it and it was just a simple negligence case you could look at and say there's just no gross behavior here or the underlying pleadings as opposed to what actually happened important i don't think the underlying pleadings i mean that's been their position from the very beginning that you just look at the underlying pleadings but the arises out of standard and this court said it and the spiritus case when you have arising out of language you look at the underlying facts not necessarily how someone has characterized it in their pleading but again just for purposes that pleading pleading says negligence in missouri that is every form of negligence including gross negligence missouri sort them out the word negligence and a tort claim includes gross every time she can't tell by looking at negligence that it's not gross negligence but when you look at the facts that are allege you say that they really are let me go back to my question earlier are there any facts relevant facts that are in dispute here  i think would only be the end no i don't think i said that earlier what what what do you mean by that what would be an inference for example that a jury could for example even if you felt that it's question of law you have a given set of facts does that constitute gross negligence and then a legal question but i think in this case it can be decided i mean that there have been a number of cases that have said this very sad fact scenario of shooting for some purposes is gross negligence or recklessness well the fall of more just granted just asked other cases in missouri that discuss gross negligence is not a common law concept so there's not a walk a saw on it but i assume there are cases in missouri on what constitutes reckless conduct counsel my name's dave all the time may have police a court now will you robert i represent federal insurance company and i would first start off by saying the district court correctly saw this as a relatively simple matter rather than the convoluted behemoths as argued by great american the district court correctly determined as a matter of law that the order of insurance coverage between the whispering lakes tower of insurance and the arco tower of insurance as set forth in page six of our brief the district court correctly determined that the indian harbor in great american tower should be vertically exhausted before you reach the tower zurich and federal and is that based upon the it is so you agree with your opponent then that the indemnification agreement governs in this case and the only issue then is gross negligence largely yes and so it's important to tell you how we got here we file this to determine the proper order of insurance coverage regarding a settlement of an underlying case the underlying plaintiffs in jackson county controls his petition and we as an insurance company have an obligation to defend our insured in the weeks before a jury trial play to file a second amended petition plaintiff the underlying point it was clearly attempting to shift the case not so clearly as great american wants to are number of negligent acts that are completely there they're related but tangential to the act of shooting so in other words did he properly act as a pool monitor on the day of the quote on the day of the shooting by the including responding at superior argument they did they did so there are certain things that i didn't like as a as insurance company for federal there are some things that i did you know that there are some things that we provided coverage for and some things that we didn't but we're looking at down the barrel of a jury trial in jackson county other second amended petition and the choice that we have is to protect our insured missouri supreme court and insurance law defines that an insurance company must sacrifice its own interest to protect the interest of its and shirts so in this case i don't agree with what mr sullivan did but if i decided to put federals insurance federal insurance as interest ahead of those of mr why aren't the facts of this case that are apparently undisputed along with the guilty plea to something that requires recklessness and an underlying pleading that mentions recklessness which i understand to be a little higher standard than gross negligence why isn't that enough for a finding of gross negligence or at least something arguably the chernobyl jury well was gross negligence is not defined in missouri there is no such so you must think it means something what i what we argued was we are supposed to look at the document of petition the operative petition that we were all operating on and under when we settle the case and looking at those allegations missouri clearly recognizes negligent hiring mystery clearly recognizes negligent supervision missouri clearly recognizes these other theories of liability that don't rise to the level of gross negligence under any circumstance ok but but they also recognize responding answer period here which is the i'm the lawyers responsible for the employees actions and let's look at the employees actions and if we went to a jury trial on that and in the underlying case there's a certain there's certainly a likelihood that federal could have walked away from this everyone could have walked away at the count if the jury found a found liability on it on a portion that there was no coverage all of us could have walked away and are insured would have been left out in the dirt in the wind to twist mass of assume some of it's not an insured well there's no way sullivan is not an insured if he's acting in the course and scope of his employment and great american just you know great american in order if you're going to apply the indemnity agreement the presumption the presumption in the agreement is that yarkas entitle to indemnity from whispering likes except in three circumstances the presumption under that agreement is that on things that are not soley fraudulent solely willful and soley gross negligence here we look at the second amended petition clearly there are things that are run of the mill ordinary negligence sort of recognized in missouri negligent hiring negligent retention negligent supervision also the response appearing here that's in there too and when you settle a case you settle the whole case you don't  everything and great americans are so i'm sure in that you can say well it's clearly all in this gross negligence pool is incorrect in especially in an insurance world you settle the whole thing i special this is the trouble the duty to defend is broader than the duty to indemnify it every time that there was a claim that fell outside of coverage an insurance company says well you know what offend you but forget forget you're on and empty we'll be trying cases left and right where's the insurance company will ultimately make a decision that they're going to settle the case in for get forego their coverage concerns so what i'm saying in this case is there was plenty of evidence and plenty of indication in the underlying jackson county action that there were things that could've been covered things that wouldn't have been but the order that we're dealing with made make findings about gross negligence and says that that's i mean  suggesting that we should look at extrinsic evidence however great american has strongly suggested we should and in fact that was their expert that said that but but but i'm talking about the order though the order makes for talks about gross negligence or we do totally ignore that what i think the great the order talks about was that there's no evidence of gross negligence first of all there's no mention of gross negligence in the underlying petition in the second a minute petition there's no mention if you would expect that because it's not recognized and that's true it's not recognized as a cause of action that's true but we have to live in the real world of what is in front of that in front of us when we're trying a case in two weeks in front of  the real world is he shot a glock thirty times and killed a person so well i will also say it wasn't just him there were other people that were there it was undetermined whether he was the one that actually fired the bullets or not that was all up in the air as well clearly the underlying plate he was trying to draft a theory and presented to the jury that would maximize potential insurance coverage because if there was a straight shooting case federal would have denied it well let me ask you what's cut through the cloud are you are you saying as a matter of law that i'm the i'm just read of facts in this case there's no gross negligence on the facts as we know on in this case including the guilty plea there's no gross negligence i would say you have to as a matter of law as a matter of law you look at the underlying petition there are the facts there's no gross negligence if we get to that do you lose i would say the world that we have to live in is what is the operative in the man a petition and that's what missouri courts have said missouri courts particularly in that area that has you not answered my question if we get to the underlying facts is there at least a jury question about gross negligence i don't first well i don't know what that would look like i don't know what standard that is and i think that's something that the great americans ask me to do is create a standard as to what gross negligence would be under missouri which missouri supreme court has said not to do and that they don't recognize i would say that there is no gross negligence based upon the second a minute petition that's the undisputed fact the undisputed fact is that this case was settled and therefore there was no determination of what the underlying facts are so when you say if we looked at the underlying facts which underlying facts are you talking about the only ones you can be talking about are the ones that are plugged because that's the only thing that we have well isn't that an argument then for a jury trial no it's not an argument for a jury trial every court that's addressed this issue so far has said when a case is settled by an insurance company you can presume the ensurance settling the claims that are plotting against its insured and the facts contained in those pleadings and the facts contained in this pleading are that sullivan or one of his friends was attempting to shoot a gun  but one bullet got away but more importantly by arco but the issue here is i understand it is you have insurance comp policies that normally if if there was no if there was no  agreement you would look to the language of the policies to try to sort out who is first who second certainly but you do have an indemnity agreement and everybody agrees the indemnity agreement which provides that the management company are that the owner would ed why does that not get us back into gross negligence because that's what you're relying upon is the indemnity i'm not i'm not saying it doesn't get us back into gross negligence i'm saying it gets us back to the pleadings to determine that issue so just like in wal mart versus oriel aurally i just lawsuit the underlying pleadings were that sullivan shot multiple times and killed the girl sullivan shot multiple times other people shot multiple times everybody was trying to shoot into the lake and new york oh knew about these things going on didn't prohibit these things going on should have had security on the premises but didn't should not have what sullivan stay a poor monitor when they knew that he had a gun and multiple other things that your co failed to do before the shooting ever occurred that's the underlying pleadings those are the facts that we settled this case on and york those independent concurrent negligence was absolutely a part and that's frankly the place the players want to take this case and if somebody was talking about the reckless conduct of sullivan that's not insured so again when you say the the ensurance companies what they did was settle the claims that insured against third parties third shirts we're talking about your clothes negligent conduct possibly sullivan's ajoy negligent conduct in thinking that it was smarter to go down by the lake to shoot these guns offers of by the pool as play it again the facts are what is in the second amended petition those are the facts just like in the st paul case just like and wal mart we don't know what a jury would have decided when actually had to ask a question for clarification this this settlement that was reached this global settlement and all the all the insurance companies can contributed to it as i understand it what was really what was reserved at the asians company by the companies to allocate it amongst them were a need what about coverage itself now and so do you think that back with that there was an agreement that whatever theory alleged in the plaintiff's compliant the underlying compliant that there was coverage for all of those theories that there was an agreement one way or the other i mean that the law basically is once you settle a case as an insurance company you're admitting for one that the person that you set on behalf of was your insured and that there was and you're paying for what the claims were against that insurer later think there was any reservation in the agreement of those kinds of issues in the settlement agreement between the insurance companies as it contributed money to get rid of this case no one reserved a claim that we're paying for only so and so are only such include such claims it was all of the claims against the insured against all of the parties everybody has released from all the claims on behalf of all of the parties by time's up thank you let me just briefly address this issue of negligent supervision and so on negligent hiring the language of the endemic cause says that the managing agent shall assume sole responsibility for and save the owner the owner not the other way around as suggested by the district court you ask about what there is an agreement about coverage and federal actually negotiated a settlement in the end and there it's simply want an address or the party just agreed to that it's the insurance companies agreed that they would fight about it at a later date to decide who should have paid what and there was no limitation on what theory we would fight about  so implicit in what you've said is the the understanding that that these companies could at a later date argue that they should get all their money back because they're not there's no coverage well wasn't really what they were arguments priority of coverage and if you're asking about the sultan was now are insured which doesn't really touch upon this basic threshold issue of gross negligence or not that doesn't really matter if he was or wasn't for that purpose it already matters in a very limited context in our brief about a theory that if we were have to pay installment wasn't our insured which he wasn't then we would be stuck into  counsel for the arguments today and for the briefing cases submitted and will do our best to figure it out an issue an opinion in due course