as the record shows is relatively small utica is pursuing this appeal because you tick a issues professional liability policies all across the country and the lower court's decision here is the only decision anywhere in the country where a port has held the claims by a competitor or are covered under professional liability policy you can strongly believes that the lower court's decision should be reversed for two reasons first there is simply no claim for professional services here where cresses complaint the underlying plaintive allege that landis method of doing business constituted unfair competition and did not allege that leniency breached a professional obligation to cross the underlying plaintiff to general starr a surplus lines and sure or to any one second both of cresses claims and the underlying complaint were premised on unfair competition and you because policy plainly excludes unfair competition claims of any type turning first your honour's to the professional services requirement of you because ensuring agreement the only issue on appeal is whether you dicker had a duty to defend and as this court is well aware that analysis requires the court to compare the allegations of the underlying complaint to the provisions of your tickets policy now randi and its brief account attempts to characterize the cress complaint the underlying complaint as alleging that lindsay breached its obligations under a producer agreement with general starr a surplus lines and sure and ended must think that point is very important because by my count wendy says twelve different times and it's pretty that cress alleged that mandate was negligent and performing services for its customer general star in fact the cress complaint says nothing about mandy's agreement with generals general starr nor does chris allege that they indeed breached any duties alleges is that we are aged in a method of doing business that constituted unfair competition this court and every other court that is considered similar complaints that are based on an insurance method of doing business instead of on an insured breach of a professional duty has held that those claims are not covered under a professional liability question a client of the insured i mean are you saying that there has to be some kind of relationship between the insured and and he client and the argument is that  argument go that far our argument is that there has to be an allegation that there was a specific breach of professional duty to to to to someone and that is not in this complaint and the reason it's not in this complaint is that this is an unfair competition claim and a one company does not owe duties to a competitor so what we're saying is that there has to be an allegation of a breach of a professional duty so i think perhaps what your honor is getting to is i think the point that was made at the lower court where the arguments seem to focus on this claim has to be made by a client what has to be in the complaint is a breach of a professional duty a competitor cannot make that claim so if the question is could a competitor ever have a professional services claim my answer would be no but we are not saying that a client of the in this case insurance agency could potentially stain a claim for professional services under a tort tor duties do not is that landy was involved in a method of doing business that constituted unfair competition and what that this the count of the complaint that appears in the california underlying complaint it's titled negligent interference with contractual relations and as we point out in our brief under california law where there is a claim between two competitors the only the only essential element to that clean is unfair competition without unfair competition that claim cannot be pursued and we saw that if general starr had alleged that that the company  negligently failed to apprise itself whether there was an inadequate market among the admitted companies we might have very different case that's correct yes the regulator made the same claim we might have a very different case if a regulator made that claim your honor i agree that would be a different pace if if and if if somebody who got sold the insurance realized that they paid too much we might have very different case so it's only it's just the fact that it is a competitor that that distinguishes this from those three circumstances that distinguishes it distinguishes it from the cases we talk about in our brief and if i could go on your honor it distinguishes it for two reasons why and is that a competitor does not have a claim for breach of a professional duty but second the damages that would be alleged in any of the hype of hypothetical scenarios that your honor just mentioned also would be due d m not just that flow from a customer would be alleging is a breach of a specific professional duty and damages in the form of the difference in value between the policy they did get in the policy they should have gotten that is a classic professional services claim what we have here instead is cress not alleging a breach of any duty alleging unfair competition and the damages that cress alleges are lost profit they're alleging damages from unfair competition those that is not a professional services those are not that that is not the type of claim and the type of damage are intended to be insured under this my name is john granted i represent mandy insurance the problem with the argument you've just heard is that the policy does not refer to claims for breach of professional duties the policy refers to claims arising from acts or omissions that occurred during the performance of professional services landy was performing professional services on the crest complaint specifically refers to activities that were indisputably services that required the specialized expertise of an insurance professional so they met the definition of professional services that has been provided by massachusetts law and really by the law of almost every other say if not every other state so the  claim is not did you breach are you being sued for breaching a duty to the claim that the policy provides coverage if it was professional services and if you did something wrong and performing to professional services if you took a wanted to write its policy differently it could have done that bought it has to live with the policy approach now i also have cited in who was sued by a non client for misconduct in the services he provided to his client that that claim fell within a professional services in that case it was an exclusion but that that claim clearly and unequivocally arose out of professional services there is a case from illinois to pekin insurance case  which applied the same principle in the case involving an insurance company and if your clerks go to the books they will find that there are many other cases similar  that make clear that professional services don't need to be services performed for the client if you explain what exactly were the professional services that wendy was availability of it insurance coverage from admitted insurers as to certain companies that it placed business with general starr for yet allege that landy was negligent  n understanding the regulatory filings that was required to make it allege generally that it was negligent simply in placing and soliciting the insurance and the record was  it was negligent in the conduct that took place insurance as a result of that negligence essentially by way of collateral damage we press lost business that we otherwise would have got say you take the case as it's been characterized by the plaintive in the underlying complaint it's not up to a court reviewing defense costs to determine whether that's a real climbing or a re characterization of something for which there is no coverage or there is  coverage and so my concern is less about unfair competition than the fact that it is actually the underlying plaintiff's lawyer who governs with the pleadings he makes as long as he's referred to them as lieut and the law isn't clear that he can't they defense costs are award well you know if the underlying claim is marital us that certainly you know bears on the defense of the underlying claim but mandy has to deal with the claims that are made against it and i think it's important to  that although my sister keeps referring to this over and over as just an unfair competition claim the statutory unfair competition claim provided for no damages  damages claim against landy the only one that could result in a big money judgment against landy was a claim that you landy were negligent in the way you performed obligations for your client and as collateral effects of that nature legend's you caused us press to lose business there is nothing implausible about that type of claim there are certainly in the area of where conduct directed towards somebody else collaterally damages a different person and that different person has a client well it might be that no duty is owed to a competitor in the case might get dismissed on that basis but that that's a different question that's correct it would be up to the attorney and hired and paid by you to kind of to get at this mess i mean i you know we're talking about you know policies and i think of it in terms of course of legal malpractise policies because that's what we all know about every lawyer knows that you know if if you draft the document or make a government filing a subdivision plan or  prospectus or trust document that short if you're of negligent doing it probably the person most likely to sue you is your client but those documents of fact plenty of other people claim i'm surprised you're arguing it because that then gets a court in our position into weighing how good the plaintiff's decision is rather than that being done in the court where the claim is being made i think i think the massachusetts coverage law is just very clear that when when the coverage decision is made the the  court making that decision or the insurer doesn't evaluate whether that claim that falls within the coverage is a strong claim i agree with you it's just you  i only have thirty nine seconds or thirty eight seconds left on the unfair competition exclusion there are many types of unfair competition that fall within the grab them in of that cla dress planes there are trade name planes the natural reading of unfair competition of any type is that it means all of those different types and the other type of plane that involve the likelihood of consumer confusion as to the source origin endorsement affiliation of goods and that is well established law thank you very much for honors we're not arguing here that the coverage decision should be made based on whether the clean is has merit where it doesn't but we said in our brief was that the particular claim that cress alleged idea of negligent interference with contractual relations between competitors can only be proven through unfair competition it's an unfair competition claim and the fact that the plaintiffs in that case sprinkled negligence throughout the complaint means nothing other than they were attempting to allege that they were negligent only unfairly campin competing in just one minute on the unfair competition exclusion that exclusion plainly breeds unfair competition of any type if we look at the complaint in this case both counts were premised on landis alleged violation of the california unfair competition statute what land what mandy wants is that exclusion to say that it excludes comp unfair competition claims of a certain type but that is not what it says thank you thank you