thank you your honor clark holland on behalf of state farm this case is relatively simple it involves the interpretation of a california supreme court case called this particular case involves a substantially different policy exclusion than in the mcclure case the trial court i think went beyond what was necessary in applying the california supreme court case and the idea that severability clause in an insurance policy could create an ambiguity for the sexual molestation exclusion in this case i'd like to make several points about the differences between the case and our case first of all the use of the word any in our case any insured as opposed to an insured the exclusion here specifically said that the exclusion would apply if the injury was arising out of sexual molestation in the make their case it didn't have the arising out of language it just said caused by the reason for that is that the intentional act exclusion and mink were was taken directly from statutory provisions in the california insurance code it was unlike a standard exclusion like arising out of the operation of an automobile for instance which is much broader in those contexts the real question here is whether or not susan potter who was the primary insured under the policy woods and potter understand that if someone else caused sexual molestation she might not be covered that's the question because the idea here is the appellee argues that susan potter looks at the policy and says well as long as i didn't do the mala station i will be covered there's no way that susan potter could read this policy and come to the conclusion and let me tell you why first of all it says any loss arising out of sexual molestation by any insured not just one insured any insured and let me give you an example if you are a judge and you tell twelve jurors are yes if you if you tell twelve jurors if any jerk votes not guilty the defendant can't be convicted that would be a true statement any juror if i'm a juror i sit there and goal does that mean me well of course i'm any juror i look to my right as the person to my right and each other or yes the person sitting behind me any juror yes it's not just me it's any of the people who are part of that group and the trial court was very clear that cooper potter who was the molester in this case was any insured he clearly was but more importantly from susan potter's point of view if she reads the exclusion it also says if any of your employees do this if any people acting on your behalf do this so she couldn't possibly reasonably conclude that she was fine as long as she didn't do them a lasting she can't reasonably come to that conclusion to federal court district court clerk was very clear in its statement don't do this right this is a california supreme court that's trying to explain to courts of appeal here's what we mean and  we stress that our reasoning and conclusion under the specific circumstances of this case which involves the interplay between a severability clause and an exclusion for the intentional acts of an insured does not mean a severability cause necessarily effects all exclusions framed in terms of an or any and sure so you have to look at it differently and then it went to the next level and said we know that many policies include sexual molestation exclusions and you shouldn't adopt this ambiguity and alice this simply because of that and in the complaint that was my question was because it was with the theory of interpretation in the summary judgment argument we did make that point although frankly it was a minor issue because i want to make clear we did not we did not take the position that the allegation unlike the make clear case we which dealt with the question what's an occurrence or what's an accident state farm didn't argue the issue of occurrence or accident because we had such a specific exclusion directly on point there was no reason to make that argument clearly from cooper potter's point of view there was no accident right his conduct was was intentional and he was convicted for it we did not dispute the potential argument that susan potter liability could arise out of an accident but it couldn't hurt a liability couldn't arise out of anything other than the sexual molestation which was clearly excluded most importantly is minkley or has been on the books for eight years and there's not a single california court of appeal who has held anything remotely like the trial court held here which is that applies to these types of exclusions one would applied to a sexual molestation exclusion those courts didn't have any trouble saying doesn't apply because the california supreme court told us not to apply it in a sexual molestation case and i'll reserve my time differences between the exclusionary policy and make lawyer and for his clients i don't think that's the standard here the standard is what a reasonable policy holder in a world where many governors understand that they're not separately insured and then the exclusion would apply to them based on the policy i don't think they can reach that any people working on your behalf well your honor i understand the any insured part of the other two specifically don't apply in this case because there was no discovery on those issues that they apply in the sense that any reasonable case susan but acts done by other persons for which the law makes her liable i well i would disagree with that i said because under the make lower courts holding the so that how do you i mean why did justice baxter spend some valuable link on limiting the holding of minkley or not doing not to be used to construe policies that had sexual molestation exclusions well i think the easy answer to that is because he hasn't read them and they weren't in front of him you can demand word he said let me let me get that language for you he said look he says unlike many current homeowner insurance contracts which shows that you know something about that that is policies did not contain specific exclusion for claims arising from sexual molestation well again the answer is that those are in front of him and what they are in front of a me but they were not deciding they were not to start it because you can always imagine a policy that says something like this notwithstanding the severability clause above the sexual exclusion applies to every policyholder that there are i think in order to make it in order to make it clear and it resolve any ambiguity in the contract the sexual aspersion clause has to have a reference back to the  to make it clear to the late to the late policy order that somehow in the world of men cler i'm not separately insured and i don't think they can make that claim for council sitting here i to predict how the california supreme court would address this issue a unanimous california green court yard yes if it were before it so you'd think that the that the california supreme court not making a black letter law here because each policy can be different and each exclusionary class me different but i still think you're going to need a reference back to the separately ensure provisions so that layperson would know that they're books i don't think that's necessary in this case your honor i think it's it it's clear here that there is the ambiguity as state closet self it's caused by the separately insured provision that's where the ambiguity lies and unless you can correct that ambiguity you're i think you're doomed to failure as an insurance company unless you do something to clear that  up i think i'm i made my position patently clear here if there are any more questions i think i'll call it was time i think your position this that we should follow me clear and if we don't home i i will have to say i agree with appellee that i don't think it's necessary in this case but i suppose if you would like a definitive ruling that would be appropriate and i would look forward to the opportunity to once again argue before the california supreme court but again let me ask you this has there been a california appellate court dealing with sexual exclusion in this case yes but only in apply make clear because the court told us not to write and the judge bejo was was correct that the policy language which you're obligated to read in its entirety makes clear that torts by others could affect you i want to emphasize that the severability clause in any insurance policy isn't magic all it does a say each insured has to have the policy interpreted an insured could say well i didn't commit an intentional act so it doesn't apply to me no reasonable insured could look at this policy and say as long as i don't act in a sexual molesting way i'm good maybe the problem is stay farm doesn't have any way of identifying all the insureds other than saying any insurer the word any has to have some connotation and that the c s a case which we cited specifically