your honor this is an appeal from a decision made by the trial court judge in denying plaintiff's motion for summary judgment and granting defendants motion a reading of the record reveals that the only way the court could have made the decision it did in the only way the apple e can take the position it is taking is by rewriting affectively the policy of with all respect to the trial court apparently to justify a conclusion reached prior to considering all the factors the trial court held that the policy coverage was limited to claim it by so called customers people who had either obtained a policy who were being sought after to enter into a policy relationship that is what the defendant does m b the plaintiff does it is an insurance agency representing various insurance companies the court closed in and concentrated on two words it comes in the coverage section and it talks about what it does for others now it's important to note that the phrase others are for others is not defined in the policy language the other key words that lead to the court's conclusion are defined terms and the court chose to ignore these we argued that for others it could not be limited to the extent that the court was limiting it and we look to the language of the policy to support that conclusion if you were to prevail on that point you still have some other hurdles to get over don't you and that there is some alternative theories that appear to be involved well i think the alternative theories so to speak are only supported by cases which are different in facts with policies that have different language and do not have what claims have to be honored under the policy what are the nature of the activities that are covered in those that are not covered when you get to the duty to defend section it doesn't create ambiguity it's treating something different coverage is coverage do to defend is different and the way this language is written it's very strong i will grant to you that in the research that we have done into other policies this language is atypically strong in that regard but that language that you rely on right now is what i'm quoting now from the policy of parents that a cli it starts out with language that the policy does not apply to a claim arising out of any dishonest fraudulent criminal or malicious error or omission or acts of a knowingly wrongful nature committed by or at the direction of any insured not the language stop there your honor i wouldn't be here understand it goes on are talking about the insurance company we will defend the insured against such claim unless or until the dishonest fraudulent criminal malicious or knowingly wrongful act has been determined by any trial verdict court ruling regulatory ruling or legal admission whether appealed or not and your position is that the to defend is broader than their ultimate indemnity requirement and the first part of that language refers to claims after pay but the second part refers to what they have to defend right and they tend to qualify each other being in the same section talking about exclusions this is an exception to the exclusion yet it relates to the duty to defend it's one thing to take the position what is alleged against you is not covered by the policy in terms of us having to pay out money it is not considered a justiciable claim by us is totally different than saying until that is f out until you either step forward and say yes i did those things or there's a finding either through arbitration or a court proceeding or however it is regulatory or otherwise and i we will defend i suppose among other things your opponent to argue that an exclusionary clause can't create coverage that we're not talking about coverage we're talking about that some are classically covered some are not some are vague they're vague sometimes by the nature of the formal complaint filed against the insured but there's case law as we've cited in our brief that says you can't rely on the scrivener of the underlying plaintiff to come to the conclusion that they came to what it that's what about the earlier unqualified language we have no duty to defend any claim not covered by this negligence correct correct and net and so wrongful act under the policy is a negligent act correct well actually the way the plaintiff couched the language in the complaint that was filed the answer to that question is yes but it has to be that my yes to have to be modified in two ways one is after the fact that there was arbitration in that underlying matter and zura was totally absolved and said it did not engage in any wrongful acts intentionally or unintentionally now i realize that's after the fact and and i'm not trying to bootstrap the outcome the claim was never asked on allegations negligence that was what the plea to was trying to establish correct that is correct but that's not all that stated where it says in the definition of wrongful act is defined as any actual or alleged negligent act error or omission the fact that the complaint didn't use the word error arguably as feasible a conclusion syntactically yes to what it modifies and what it doesn't modify and there isn't is one could diagram distance in more than one way and that brings this into the focus that it's certainly a basic contract law when it comes to insurance policies and certainly the law in the state of michigan that where there is a vagary where there's the possibility of that not being clear the duty to defend and coverage must be construed against the insurance company and in favor of the insured that is the state of the law when you put that back to what the trial court did by going ali and by going outside the four corners of the document to come up even using the language the  appellant in this case the worst result is that there were questions that could be questions of facts such as intent what was intended by this what was the meaning of language in the policy it should not have been summarily dismissed but it should have been left open for trial even if you were even if we were to credit your interpretation a negligent not modifying error or omission was that the complaint alleging error on mission it in your or omission include intentional acts you didn't use that language that's number one number two the  language that we have been focusing on for the last two or three minutes comes in the coverage section doesn't come in the section dealing with duty to defend it with a duty to defend is we're going to represent your interests until it appears for some happening that you don't qualify it's for it's a freestanding obligation the language word disgusting now is is defined in the coverage area the right the obligation to indemnify and as judge guy in a question indicated it's much broader when it comes to the duty to defend and it isn't coverage i see my time is up so any insurance coverage dispute first you look at whether there is coverage second you look at exclusions in fact in that was in the because key case in the allstate vs freeman case  adopting a decision from the maryland court of appeals actually said that it was improper and frankly irrelevant to even look at exclusionary language  if there is no coverage apply couple under the coverage grant and when you look at the coverage grant and it does include the phrase we have no duty to defend any claim not covered by this policy the coverage grant says essentially we will pay on behalf of the insured damages that the insured becomes legally obligated to pay because of claims made against the insured for wrongful acts arising out of the performance of professional services for others and when you see when you dissect the elements of the coverage grant the first thing you look at is the definition of wrongful act and as the panel was stating the question is whether the phrase negligent act acts errors or omissions allows any coverage for intentional acts and the case law is clear that it does not this court has ruled in in such a circumstance in the northland versus stewart title case to quote from the fourth circuit in the employer's reinsurance case cited in our in the underlying briefs in accordance with the grammatical rules and popular usage the adjective negligent modifies every word in the series  the one federal trial court said the term negligent must modify the words acts error and omission because it would be self defeating to limit the definition of the phrase to negligent acts but at the same time cover intentional errors and omissions to do otherwise would render the word negligent meaningless so in order for there to be any obligation for us to defend the claim must satisfy the ensuring agreement it cannot satisfy the wrongful act component because the allegations against zura clearly are intentional there stated as such in the complaint the elements of agreement with his prior employer by soliciting clients of that former employer and they allege that sura was a part of that effort that's the case so your position very liable at such point in time it's going to determination that it was actually intentional act exactly right and but in the instance such as this where it's only intentional conduct it you can't leapfrog the ensuring agreement and bootstrap that that last phrase in that exclusion to say you've got to cover the case in effect negating the coverage grant and that's exactly  what the appellant wants to do and that is fundamentally against the rules of construction in michigan and in fact it's contrary to the rules of construction the rules of construction that the appellant's here advocate the most and that is that must read the policy as a whole but but what they and that phrase is correct but it's half a phrase it's actually you must read the policy as a whole and give effect every word such there is no surplusage if you adopt the appellant's position you're creating a situation where you're deeming the coverage grant the wrongful act whether it was professional services whether it was professional services for others all of those aspects of the coverage grant are negated and rendered as mere surplusage because now we would be obligated to defend a claim that is soley an intentional act that's the whole that's our whole position thank you y it doesn't mean that it's not a lion now that's a bizarre example but i'm trying to point out that the only way to reach that conclusion is to rely on some other scriven who is not a party to the action here almost would have to be intentional i don't know how one could negligently do what the plaintiff accused offend of doing in the underlying author and your honor for what you just said that's exactly why there's a provision of duty to defend because you use the word almost now that's why that provision is there the entire argument here was talking about the standards as to whether there's coverage it is obvious from the exclusion provision which i don't know why it was named that but again the cases are clear don't rely on titles but that the reason that that  was in there is it creates another duty i'm not going to say it transcends the question of coverage but if it's almost intil it is definitive they have an obligation to defend and it clouds the issue by coming back to the elements of indemnification and the test to show that there's coverage it doesn't strike the issue there had to be a reason why that language was put into the policy well one reason would be the one i suggested pleading in the alternative who out it may be but again now we're back at not looking at the relationship between the parties what the intent was what the expectation was what the consideration was for entering into this insurance policy between the insured and the insurance company now we're going beyond that and we're looking to the way allegations were made by some person who not a party to this we shouldn't be controlled by that we should be looking at the document itself looking at what it says and asking ourselves if there's any vagary because both sides have said to the court in writing we don't consider this to be ambiguous so we're looking at the documents we've got to go back and ask ourselves why is it here ok it can't rely on what a third party puts down in writing it has to rely on the reason that the relationship between the insured and the insurance company as to what it will protect and what it will not protect and while there is a question any question which has to be construed against the insurance company while there is any question as to whether there is coverage of the provision about duty to defend is extent and it should be honored they chose not to and the trial court chose to ignore it we should not leave this case in that posture thank you very much we appreciate the argument about you and it will consider the case carefully thank you