good morning your honour's rosemarie cried no on behalf of the defendant for a brother's may please the court in doing some research on the issue of occurrence in this case i came across a fairly recent case not surprisingly from california that complained that litigation over coverage especially the issue of occurrence in liability policies was causing the death of way too many trees and we continue in that less the court prefers otherwise my intent is to address first the ground on which the circuit court relied in granting the insurer's motion for summary judgment and that was that there was no duty to defend the insured in this case because there had not been an occurrence as defined by the policy brief a view of the facts for a operates a warehouse and purchased liability insurance the insurer for a stored in shit chemicals produced by a customer of the warehouse a warehouse worker was supposed to put a new label on a container we'll call it chemical  and took a label for chemical a and put it on a container for chemical p the red house was then to ship out the container to a customer of the warehouse customer and that was which manufactured in it he's a bank will use the kind of go in manufacturing the adhesive and shipped to its customers to customers that made medical devices when one of the medical devices makers noted a problem with the it he's a bond it wasn't strong enough when it was discovered that the adhesive had incorporated the wrong chemical the customer of the warehouse had to pay the it he's an maker its customer and the customers of the adhesive maker the device manufacturers for the damage products the warehouse customer sued the warehouse for the amounts it had to pay it he's of maker and the medical device makers so because the warehouse worker made a mistake in labeling the container it cause they have train wreck after the warehouse customer paid out to its customers it turned around and sued for eight brothers for a tender the defense to the insurer which refused to defend or a which had to be responsible for its own defense and ultimately settle the matter the insurance company later filed an action to declare that it had no duty to defend farai and note and no duty to indemnify for a for what it had paid to settle the whole thing now unic mood for summary judgment on both the issues of the duty to defend and the duty to in although they seem to not be squarely separated at times but that's what they were doing the unit made stree arguments one that there was no occurrence as defined by the policy that there was no property damage as defined by the policy and that there was a policy exclusion for recall products that applied excuse me for  agree very much so and only to the extent that we needed to address those in our briefs in response did we do so i will confine myself to the duty to defend on the trial court's basis which is which you agree with me that generally an insurance company's duty to defend is usually broader than their d v d player i would strongly agree and in order to determine what is an accident under the terms if it was an accident your honor the the warehouse worker as heir products charge was careless and negligent and in making this mistake here and the underlying complaint never allege that this was into the case law which is very established in this state going all the way back to one nine hundred twenty four that even if an act was intentional if the result was not intended or expected it's not an accident here so when the warehouse worker made this mistake and put the label a on container b that was a mistake it was an accident and the underlying complaint never alleged that it was anything but negligence so under that approach there was an accident there was an occurrence under the policy that was the sole ground that the trial court considered here and because the case is overwhelmingly favor for race position on this that is the basis for reversing the trial court on the ruling that was made which was a much narrower ruling and the trial court was asked to pay and on that basis the only line of cases that the insurance company relied on on the occurrence issue is a line of cases for faulty construction this is a line of cases that diamond viking that you know somebody that makes a roof and does a terrible job of it and then the roof caves in and the customer complains and sues for breach of warranty breach of contract and wants a new roof and they have to case that falls squarely within the faulty construction line of cases they at the roof maker cannot go to the insurance they will now you have to you have to d indemnified but i think as we've pointed out by going into the facts of this line of cases they involve the faulty product of the insured insured made a bad school building and where they diverge is that may be true but once they have product goes and harms another person or property even those cases are not applicable so there's two distinctions here for a did not make a faulty product here for a made a mistake and down the line it caused these medical devices to become damaged we don't have a situation where someone is trying to replace the roof they're saying you caused damage to my product and we're going to sue you or make a claim which they did that's what liability policy is or here trying to recover from the insurance company for a faulty product that it made and that's the distinction that we draw in our briefs and that is approximately the essence of our argument on the issue of whether there was an occurrence here if the court wishes me to address any other issues as raised by the insurance company in its briefs i would be happy to do so or reserve any further comment on those issues in my remaining time as the court please also can i ask you relative that out more and more remote use which says or has to compare the allegations of the complaint to the policy language and then determine if there should be a duty what was it that the court all we know is what the order said and that is that there is no duty to defend because there was no occurrence an occurrence is a defined term in the policy defined as an accident with some bells and whistles that it was strictly of that your honor ok and if the court would permit me i will address any additional issues that are raised by the insurance company might in my remaining time thank you presented by the record if that has some particular importance here because three brothers in its opening brief didn't talk about property damage at all didn't talk about exclusion and it all didn't talk about it's a challenge in the lower court to united nationals affidavits evidence the court granted for a brother's right to file a thirty five and shall not be raised in the reply brief or oral argument the procedural point i'm making is that right in our view for you brothers has in effect conceded the propriety of the judgment a supported by the property damage argument and exclusion and through rule three forty one h seven this is couldn't be clearer in our view that the substantive issue just i think is initially the duty to defend but provide perspective of course that the rule is if if the court finds that there is no duty to defend that necessarily means that there is no duty to indemnify so in our view position really rests on two misperceptions regarding the law of what constitutes an occurrence for a brother's subscribes to the police that negligence allegations invariably establish an  e and that as a clear larry to that i guess that they find that the absence of intentional conduct allegations also invariably establishes an occurrence but that isn't right it isn't true more refined and that is i think the biggest difference analytically is for a grandmother says looking to the initial conduct and and she says well it was accidental this guy didn't mean to mislabel  more refined it's if it's that even if the actor did not expect or intended the result still if the result was reasonably foreseeable then you don't have an accident refined it you cited a life insurance case that obviously we're talking about it a slightly different policy definition but i think i think of the floor in the drift of the more supreme court cases in the first district cases is that an accident is something that cannot be anticipated and if if the ordinary natural consequences of an act can reasonably be seen to produce a certain result result is the ordinary a natural consequence of the act then it's not an accident so even if over a course of events begins with a negligence if you can tell what the natural an ordinary consequence of it would be it's not an accident because it's a foreseeable of event that that's the the drift of it yes and this is that why people find us oh well  results there will be the equivalent of a performance fine and the supreme court said there's a difference between performance plans and c d o policies so i think the welders really excited more as a property damage case they they get into this explanation of what the nature of a c d o policy is counsel said that the only case the united national can cite in support of its occurrence argument are construction site cases and that's not true of all the great granddaddy of all the the occurrence cases hamilton dock and that's very similar farkas and hamilton value had the manufacturer insured produced of the racket component of damage when it's through the near incorporation of a defective component in this case there was no doubt the brackets were defective they were too weak to be used but even matter of law if the court ruled there was no occurrence is that right what was this i mean what kind of insurance policy would cover this i'm trying to get that street in my head i mean what what happened here it was a mislabeling it's general liability it would be a very unusual in a logical application of rule three forty one to expect the appellant to anticipate everything that the epically would like to rely on in an appeal as far as concerned and actually may not wish to ask for a four months on some other basis and to suggest that it is our duty to anticipate each and every one of those grounds would be that in this application and there was no concession obviously of those arguments the hamilton di case appears to be cited by counsel with respect to the property damage issue so i'll touch on it and hamilton diecast they said no property damage there because there is no physical harm to the other parts of the tennis racket another faulty construction case but this time of the tennis racket well in this case the mistake that the former a worker committed ruin the adhesive which in turn ruined the medical device devices and therefore there certainly was physical harm to those the entire argument assumed by the insurance company assumes that the warehouse worker knew what it had done and deliberately perhaps mislabeled a container that's different from a shoddy roof construction company that knows by the nature of the materials it uses in them and that the practices it has that it is cutting corners they have is very very different and that phrase motion for summary judgment on that issue be granted that there was an occurrence now to be honest with you that doesn't close the question of whether there was a a duty to defend because there's another ground or two and that would have to go back to the circuit court so on that limited basis we would ask that the judgment be reversed and partial summary judgment be granted in favor of farai on the issue of whether there was an occurrence i think you