first case this morning is state farm the meaning it's case in the four zero nine zero five seven zero for the appellate dominic seymour from the aptly named jackson went to announce to the council the justice site cannot be here today he will listen to the tapes of these or he and certainly his access to them record him to the briefs and will take part physical damage to our destruction of tangible property including loss of use of this property the premises personal liability contains an almost identical definition of the underlying action this case is not damages they actually allege are essentially economic the images resulting from that failed business relationship in the trial court the defendants argue that the definition of property damages included l in the the first district the decision of the mood of versus state farm prior considered this issue and it was addressed in an almost identical definition of property damage and at that time there were no other definition often just included injury to your advantage to tangible property and there were a number of cases or some cases that these interpreted back to where it could it didn't require any actual physical alteration or structure property without any accompanying physical damage or destruction is part of the definition of how our property damages and the policies i don't think there's any question that there is no alleged physical damage to or destruction of property by those in the underlying claim if you look at the complaint all of the allegations that there are there damages that there are certain are you know loss of the value of of selling the property you loss the economic value of some fertilizer that would have come from this fine production so basically loss of appreciation in value of property that they would have been able to purchase have they been able to consecrate this original agreement rockwork found that the definition was susceptible to only one reasonable interpretation whenever you read it whenever the phrase refers to including loss of use of this property this property refers back to physically damaged or destroyed property and in this case there are simply no allegations that there is any physical damage to restructure property rather as defendants argue there's actually a they argue there's an allegation of loss of use a tangible property in the policies but there's kind of a common understood definition of accident that word is probably familiar with and the natural and ordinary consequences of an actor what should be expected is not accidental even if the party didn't say we intend that particular result if you look at the underlying allegations in the claim there's only one theory class and that is an intentional act and every allegation here is that the defendant acted with the intent and with specific expectation to interfere with this agreement that the booths had with a gentleman by the name of jack kirk to basically sell some property and get some additional economic even if there were alleged property images which research there isn't or an occurrence there's a specific exclusion in the policy for damages they're alleged to have were either expected and were intended by the shirt and again the defendants argued in the trial court because they allege an affirmative defense that they didn't know of the business relationship or the perspective this business relationship and that they acted with legal justification in their right to this gate on their property this their position and that actually because it shows at most they acted negligently that it takes they have the allegations out from under this exclusion  negligent interference with a perspective and that's under that they the cases we cited in our briefs that's a specific intentional toward that requires proof that they knew of the business relationship negligent or accidental or there could have been but fact of the matter is they've only pled this one theory and in order for them to prove their theory succeed they're going to prove that there's no coverage because they have to prove that the defendant acted with this intent to interfere with that  there was an allegation property damage because the court did not find any ambiguity in fact there isn't any ambiguity in this definition given by definition a plain an ordinary reading requires that there be a  welcome the theory of recovery that's been advanced by the booths in the anderson and underlying action is one of an intentional interference on behalf of the manny we have raised a defense to that an for a and interference with an economic interests or potentially anomic interest it has to be an intentional interference what i think the trial court was recognizing is that there was a potential given the allegations let me step back to judge roseberry the judge at the trial level was very familiar with with the parties with the facts and how this litigation came to be this was not and as we are going to the trial court as we've submitted in our brief before this court it's appropriate for a judge for this ferry to consider not only the allegations that only the particular words or titles given to the cause of action by the plaintiff in the end but to consider other allegations and other known facts that are alleged regarding the circumstances of all and judged rosebery had all of that knowledge from the police that were before him absolutely there's no question that the law in illinois for a long time has established that the question of interpretating and insurance policy is a matter of law there's no the state farm has taken issue with the finding of the trial court that there is a potential in the underlying action for property damage as defined in the policy to be approved and that's essential we believe and what we have submitted in our brief to this morning will submit to you here this morning that the interpretation of the property damage definition in the policy itself is open to more than one reasonable interpretation long standing case law in illinois regarding the interpretation and construction of insurance policy dictates that when there is an ambiguity when there is a provision in an insurance policy that is susceptible to more than one reasonable interpretation then the reviewing or must and the word is  there has been not only in illinois as missing more correctly pointed out but it other states litigation regarding this definition of property to each state farm would argue that you should interpret property damage including loss of use but only if there is an accompanying physical or tangible damage to the property the definition of property damage as stated in the state farm policy is open to more than that interpretation we have property damage that is defined as physical damage to property and it also includes loss of the use of that property and what is alleged in the number lin that because the state was struck down the booze lost access lost use to their property and as a result suffered a decrease in the fair market value of their property and addition to other of gets us into the idea of of an occurrence and whether the foreseeability of placing a gate on the manning property would prevent the goose from accessing their property the manni the blues had access around the remaining of their property and could get their property in that way there was no intention that they lose access killed so this is a one carol complaint correct  there is that exclusion in the policies however there is an exception to that and i believe we look at a case that was cited in in in the danner case yes the trial court of the reviewing or the ability to look beyond what are the the titles the bare allegation stated in the complaint in fact it says it's not it's not appropriate for the trial  wilson case which dealt with the self defense exception to an intentional tort the self defense the idea behind the self defense except exception is that there was a justification for the duty to him is very low and the overriding principles of insurance construction and interpretation in illinois suggest that if there is any answer any question of whether is a potential for claim to be proven that would bring it with in the policy of insurance then those questions have to be resolved in favor of the insured in favor of it and what we're arguing is that the affirmative defense is led by the man manning it's indicating a justification for denying an intent to interfere with these prospective economic advantages indicating a lack of knowledge even regarding the prospective economic changes could potentially as the proof and as the evidence develops in the underlying suit in which still in the discovery process in the underlying suit as the case progresses there may be something that the bulls alternately are able to prove against the mann that's not intentional but it's something else and it would bring it within the coverage that is afforded by the state farm policy it has that potential that brings the mannings play or brings the they have to be intentional the way their complaint is worded at the present time they have to prove that the mannings intended to interfere with the prospective economic be damages that the boost have suffered as a result of the erection of the gate that are not purely economic damages and i believe judge throws respect that specifically and say whether or not they are damages other than pure economic damages that are proven remains to be seen and that's a question for another day the duty of an insurer to him devil if i should unquestionably is is a much  narrower duty than a duty to defend if there is a potential that the allegation is before the trial court and by allegations were referring not only to the facts that are included in alleged in the light but in the affirmative defenses and in the other no facts that the judge is aware of he is allowed to consider those things and if there is something in there that he believes will potentially  within the boundaries of that insurance policy then he is obliged under the precedent of illinois courts to resolve that question in favor of insurance not that if occasion i don't think it's it's not that that lying you can't put it that simply they weren't necessarily ignorant so they reasonably relied on the title work the plat work  everything that was provided to them when they purchased this property there was nothing in any of the documentation that was given to them that identified this as a dirt road it's an old field route nothing that identified this oldfield road well potentially yes because then their actions they would not have had any legal justification in erecting a gate or a fence system over a couple of at this point it's not ignorance of the law it is you know the way this whole came about when the manics purchase the property they receive title work if there was a survey done and nothing in there you know i think they're justified in relying on that that information that's provided to you that when you buy real estate at the very end of the day in our in the prior litigation there was a plat a survey of plaque from eight sixty four that identified this particular roadway with enough specificity that the court was able to prove well this was originally surveyed out as a public road but this was hidden back in the old books from me to say the mannings were ignorant of the existence of this eight hundred sixty four flat and should have known that this was a public road i think puts a burden on the mannings that's not not reasonable when they're relying on present day information that's given to them when they buy property and they're doing what they think they have every right to do on their own private home as a result the neighboring property owner is claiming damages which include the loss of  five courts in illinois by force outside of the loop case that was referenced by missed seymour and her brief and argument they adopts a very narrow construction of that definition and the narrow interpretation of that definition that we would submit is not consistent with the principles of insurance policy interpretation in the state of illinois which states that the duty to absolutely clear that for property damage to only include a loss of use if that loss of use is tied to a physical damage to the property they could have drafted it in that way they did not and the way distracted leaves a question that is open to more than one reasonable interpretation we believe judge the circumstances before putting allegations of the complaint including the allegations of the affirmative defense the other facts that were no and available to him at the time and if he was right to consider all of that when a case was interpretation in particular that gives an versus farm family case which was out of may actually provided no analysis whatsoever on the interpretation of the definition which was identical to that issue in this case they simply said eventually defeat the plaintiff's claim but they don't transform the case and the plaintiff's cause of action into some unstated cause of action i can't stand up here and i'm sorry say that there's absolutely no cause of relations day if they can prove that then they prove that there is no coverage in this case if they don't prove it they don't case they simply the allegations even if you consider your family and friends do not bring this case within the coverage