and also at the outset i would like to start by addressing the court's order from last week regarding certification in this case appellant believe that sort of occasion is an appropriate mechanism to is or isn't is excuse me is inappropriate mechanism to cvs receive some guidance and resolution from the california supreme court under california rule of court eight point five four eight certification is an appropriate mechanism when the question would help decide questions under our case which in this case it absolutely would threshold question is really whether an occurrence exists under the liberty policies and it's also a question that the california supreme court really hasn't had an opportunity to weigh in on there's been some cases that have kind of nibbled around the edges but nothing is actually hit this issue head on and so the opponents believe that it would be appropriate and actually it is the same procedure that was followed in the maker case which was cited in both both of the briefs where a question was certified to the california supreme court answered by the court and assisted the ninth circuit in guiding it on california and sure it's principles in this case what we really have are three insureds or three primary insureds desmond meyer and their company that were found liable for nothing intentional for a nothing egregious the only acts on which judgment was found in this case were based on negligence dogs and supervision negligent hiring negligent retention and general negligence as the individual mr meyer and the individual mr le doesn't no allegation no finding no holding no judgment for an intentional tort instead everything was based on just negligence or the fear to use due care and that's really why insurance purchased insurance it's to protect them from unexpected unforseen things that happen during the policy period in this case desmond meyer paid more than one hundred fifty thousand dollars for the two policies in premium payments on those two policies to cover their business and cover themselves and it's to cover them from accidents and from unexpected things that happen and that's exactly what we have here we have them hiring oh yes i'm curious how this was accidental because seems like you have ellen am intentionally hiring hacked is that correct they deliberately hired him yes ma'am that's correct they are knew that mr hecht was a sex offender well your honor there's some dispute about that it's whether knew or should have known of that's the standard under the negligent hiring so it's knew or should have known but it was his brother in law he knew he had been convicted they knew that there was an issue conviction not that he was a convicted sex offender it was whether he did it when he was seventeen to fourteen year old not that he was a convicted sex offenders disclosed that he was on the sex offender registry there was dispute yes but but in any event your honor it's there is no dispute that they expected him to go out in molest someone there's no dispute that they intended or encouraged how it was those howard those injuries caused by accident certainly so when you look at the deal got a language and you have to look at the california supreme court's language and delgado in determining whether an accident exists under a liability insurance policy you have to look at the actions of the insured for which liability is sought to be impos and in this case those actions are the negligence negligence supervision hiring and pretension the molestation is not the actions of the insured for which liability is being imposed it is only the negligence construction of course that was the cause of action your honor that they were phone liable for is negligence it's it's not just the hiring in the hiring is only one part of it as well it's also the retention of the supervision and placing him on the school property that is the because if you look at the mercy of mutual language it talks about the fact that an accident exists even if we assume for the sake of argument that hiring this act was a deliberate act that if there is some additional unexpected unforseen independent that that can still constitute an accident and i understand that because it comes down to was it foreseeable and so i guess that's my lead up is how was this unforeseeable considering th at there's some language in the state versus all state case that is the discharge from the acid pit case where they really talk about the fact that knowing that something may occur or knowing that there may be an issue with something is not the same as expecting it to occur or warning it or intending that it occur and that's really did the difference or that's why the cause of action is based on negligence and not on an intentional tort for putting star hecht in that position it's based on the failure to take due care of the of mr hecht on the job site instead of intentionally or expecting that by putting in there he would molest someone it's just that failure of due care not an intentional act and so that's really the difference here your honor which also leads back to  that again in the most unusual case they talk about that if any aspect in the causal series of events is unexpected from the standpoint of the insured that it can still be an accident and that's exactly what we have here is that although they hired him they kept him on the payroll there was no expectation he was actually going to go out and commit these acts and so it really divorces it from the kind of cases that we see where it's the insured going out in committing an intentional i think it's also too important important to distinguish some of the cases that the police rely upon and that a lot of those cases have specific exclusions for assault and battery formula station for the aircraft exclusion and it's different in this case because you're only looking at the broad coverage provisions so covers interpreter coverage provisions are interpreted broadly under california law compared to exclusions which are interpreted narrowly and in his case that accident language when you compare it to the actions of the insured it's only a negligence which is an accident from the standpoint of the insurer from ellen and viewpoint my excuse me had the liberty entities intended to exclude any kind of molestation action or any kind of assault action they very easily could have done so molestation exclusions are very common in policies throughout california and both homeowner policies commercial general liability policies throughout california they didn't include one here there is no specific exclusion that would include exclude this kind of an act we just mentioned  california cases and i was curious are there any california cases in which an employee's sexual salva related conduct has been comp covered under an employer's general insurance liability i'm not certain about sexual assault because in most of the cases that have been cited in this case there have been specific exclusions from a law station we've cited the court to some of those cases that involve other intentional torts for example the well in any event one of the cases cited in there was about a catholic priest who had been molesting young boys and although the court didn't really get into it it essentially assumed that the negligent supervision of that priest could be covered under the policy but for most of these policies there is a specific exclusion which excludes any act arising out of molestation or any actor rising out of assault they didn't do that in this case instead desmond meyer paid a lot of money for a coverage to cover themselves for anything that might happen that's unintentionally caused by their conduct and that is exactly what happened with ms doe it's very unfortunate but it's still an accident from the standpoint of the insured and entitled to coverage and that's also part of why this case should fall under that coverage is because to adopt liberty's view would deprive insurers across california of a substantial part of their coverage it essentially deprive them of coverage any time someone down the line commits an intentional no matter how it how you know faultless or how negligent their conduct might be it would exclude anyone down the coverage for anything down the line that might be intentional in addition it would also deprive victims across the state of a source of tort that arises its own liability and so you cannot impute the intentional things down the line to the negligent insured but it's what we have to deal with the language of the policy language of the policy doesn't say will provide coverage for any negligent act that results in liability he says will provide coverage for an occurrence and it doesn't occurrence being defined as an accident under california law you have to look from the standpoint of the insurer which again is l and m here and their standpoint the actions those words and i guess that seems a little bit off because presumably if it was totally on forseeable your clients would have been held negligent and so i think it's more isn't just that it was unexpected that seems to me that the right term unforseen well i think that there's a difference between unforseen and for see a bowl and for see a bowl is only just the possibility of or seeing unforseen instead means they didn't forsee it at all there was the possibility of them for seeing it but they didn't actually for see that by putting hacked on the jobsite he would commit this kind of act maybe not subjectively i don't know i didn't who knows what her clients were actually thinking at the time but from an objective standpoint i presume that you can't remember it was an arbitration or a jury verdict that result was a c c p six thirty eight reference and so an independent judge was appointed a retired judge was appointed to hear a contested liability hearing who made the finding that they were negligent ok but i soon that that matter they said a reasonable person in your client's shoes knowing what they should have known about this guy's background should have been able to foresee that something like this would happen and if and again your honor i would go back to the difference between it being for see a bowl and being unforseen and so that state vs all state language about or for  which is the lumber case where they're cutting the two different types of wood and the court found that although the insured knew that there were problems with the saw and knew that it had problems in the past and deliberately fed the wood into the saw it was still an accident the boards were cut too narrow the accident did not occur though when he deliberately cut the boards too wide and so i think that goes to a bit of the difference between unforseen and for see a ball it may have been for see a ball that the boards were going to be cut too narrow but to be here patrick for dead on behalf of livery surplus insurance corporation and liberty insurance underwriters who are referred to generically as the liberty and titties as counsel did a moment ago up sort of similarly with addressing the courts question about whether it appears pro period to certify this subject to the california supreme court i answer that a negative and the reason why is i believe the law that exists out there and will have a chance to discuss it but a checkers provide the blueprint for which this court can proceed to reach a reasoned decision on law that i think has existed in california for many many years what do you think the california supreme court meant in the make a case by that but the site i studied that read it five ten times i can't for the life of me figure out what they were trying to signal to the outside world that i've read it  i did your your question and maybe i can answer both in some way the question posed to me or to the parties in a sense contained the answer and that it clarified with accuracy what was the cause of this tragic incident which was molestation the minkley or court and it's interesting expected or intended exclusion which references specifically an insured that is when an insured expects are intense and the court looked at it from the perspective of the molester and certainly concluded there there was no coverage because that's simply follows from the that the nature of the act and they looked at it as to the spouse who had prospective liability for negligen supervision or the mother i think in that case excuse me and and looked at the exclusion and then looked at the the separation of church clause and decided in that context you have to treat each insured separately say that safeco you have the wrong issue before us because why else would that be there the only context to give it mean is that the parties failed to address what was really the germane issue which is before you even get to the exclusion whether the ensuring agreement itself is implicated i know i agree with you on that but i'm saying th ambiguous isn't well maybe it's not in your mind but what i read it i read the court to say this issue hasn't been put before us boys or seems like the insurance company should have raised it these are the cases that of ours that we probably think are most on point right but does that mean but see go see these because it means that if they had raised this issue it we would have rejected it summarily or go see them because had they were is that we would have i thought i can't figure out  you know and in fairness you know that the conclusion to that may be a byproduct of the shoes in which you set right and so for me or stand for that matter so for me though clearly the context with which the footnotes there and the but see reference is a reference to yet missed the issue and i'm sure counsel had a sigh of relief when safeco did and but see these cases because these cases provide the clarity which is in the first instance this case shouldn't be here because the focus is on ensuring agreement and that's important here because part of that there are two things in my mind i can really struggle with this little bit two things family to appreciate that delgado was a situation really not like here because delgado was a plaintiff and a defendant here we have a couple of different defendants independent from the actor and so the discussions that the de got a court was initially grappling with was one from whose lens do you view the occurrence analysis first been there argued in the alternative you know first the judgment creditor i believe in that case took the position you look through the lens of the injured party in court concluded what can't be so and then alternatively argued well you look through the lens of the insured and i think the court correctly said that's not really true either and the reason why this is the distinction with mclaren whose whose minds are you supposed to view it never a purely an objective standard and this is important because if you look at the insuring language and if you do it juxtaposition between that same make clear in the exclusion the insuring language talks about you know we agree x y z and then it says but bodily injury has to be caused by an occurrence the references to the act not accurate so if you want to say an objective standard then fine from a reasonable insured standpoint that's seems to me that's the best that could be from your standpoint it can't be from the insurers stand i mean i wasn't sure if i think i've when i say objective you know i don't think that particular point actually has been directly addressed but if you look at the delgado analysis when they got into this issue they said you know i thought this was pointed because it fits well into the l a checkers case and some of the other cases they said look insulting battery the direct harm is the a saw it's not the proceeding mindset of the insured for example and i think that that that's where the des language of the law looks for purposes of causation analysis to those causes which are so closely connected with the result and of such significance that the laws justified in imposing liability here liability has been impos why isn't that language sufficient to support a finding of coverage here because delgado dealt with a different circumstance got of that with the single individual who had the claims against them it's a different sound that's the problem though you've got this language to me is a jumping off point for the court to address the issue of what was going on in the insureds mind that precipitated the song and so they don't analysis to get to the conclusion that in and saw battery it's the physical contact that's the focus because that's the immediate cause of the harm was the court's exercise of disassociat insureds mindset and taking that apart and simply looking at the act and i think that gets back to this concept of the objective standpoint of looking at it through what is the harm that directly preceded the act the other thing that i what case should we look to from the california supreme court to answer our question here is why i don't think you're limited to the california supreme court but i know that would be the goldenrod right the perfect certainly here the cases i think you look at delgado and the focus on the immediate cause not those acts that preceded i think you also look at the footnote employer notwithstanding that question mark with the but see in context particularly if you look at the sites that jump pages that the court referred you to and then i think you look at make clear looks through it and then l a checkers case and i think there's a unity in all of those cases that focus on the direct harm and that's important because that unity again looks at the ensuring clause not a not not coextensive with the actor because it's not the actor that's important it's the act and if the act itself that cause the harm is intentional as in as in this case then those earlier acts have no causal relationship from an occurrence standpoint they may have let the act and put the ball rolling in a sort of a causal chain but they're distinct from an disables disassociated from the direct act that caused the harm in and i think it's me in addition to that both the supreme court cases and the appella court cases you have a couple of federal district court cases that the court can also look to to glean a perception of the direction the law goes particularly because you're dealing with judges that sit in california and know the law well in my mind this case is the former's case which one farmer but one farmer the judge specifically said i really don't need to decide this issue if i had to i'd be inclined and i think it is the same kind of case if i agree with your honor if he had to say he made a molestation exclusion in that case correct and so he didn't you know it the but the the intellectual exercise of reflecting on the first issue about whether or not the ensuring clause itself is satisfied i think is very important because it it to me that directs the outcome you don't have to get to the exclusion the court ultimately as i recall suggested that to the extent i had to rule on this issue i would go this direction but ultimately decided it's not something we all assume that there's journaling which is satisfied then we'll go ahead we'll get right to the exclusion but that that's me that's this case neck ace focused on maple and if you if you look at some of these cases just individually or in the aggregate to me again they they provide what i think is a very very clear footprint on how california  with unity addressed these issues in fact that the maples court itself as i recall started off its discussion of this particular issue with a sentence that want to long lines of it has been the law in this state for so many years that one looks to the media cause not those acts or omissions that are antecedent to that and i think that dictates the result what about the case that mr clarke alluded to that the priest case the negligent retention priest and i think it's howard vs american national fire insurance if you look at howard and a couple of other cases in which they rely a lot of those cases cite each other but without citing any california cases that support the conclusion reached and their their respect respect to the those courts their their analyze without context were tethered to the law to  on conclusions without legal predicates to reach those conclusions so so i don't know that they stand for a proposition asserted but the basis for that proposition if one opens up the curtain is empty you are asking a slightly different question about how other states have addressed this because this language appears i soon nationwide in policies nationwide rather yes it and i've been blessed it to practice in some several states and where coincidentally here with a panel that has diversity i now live live in many years for california now live in ohio so i border with  with your honor in pennsylvania and you're from arizona as i believe that the that provides a good contrast because with all respect to pennsylvania and and arizona  california in my mind has been the judges have been more intellectually honest with retaining felicity to the language because in pennsylvania and also in arizona there's a subjective component of looking at the occurrence issue and looking through the lens of what did the insured expect well it's almost a reasonable and sure i mean i guess i'm with you you can't be a subject going to try to pry into the minds of an individual insured but from the standpoint of a reasonable insured who purchased this coverage what would they expect to be covered i mean that's how i guess i would look at it and when i can't say we've done a fifty state survey about the four a's we've made into looking at how other states have dealt with this issue this states seem to be kind of all over the map there there is some there is some disparity in the states on how they address the issue so why wouldn't i guess it just seems a little bit odd for our court to basically pick sides for california we don't have any definitive guidance from the california supreme court why not at least ask them maybe they'll say no and then we'll have to decide but why not at least ask them hey there's a division of authority in the rest of the country on a pretty core issue you guys want to have an opportunity to weigh in on behalf of your state that just seems to me the responsible thing for judges in our position to do but you're resisting that so i just i don't quite understand it i of things in your comment if i may and my my time is close so i don't mean to abuse that but i do want to be responsive is it is true there's disparity among the states but  issue knocking on the door of the california supreme court is premised on whether there's sufficient direction in this state to gauge what the outcome should be and and i think through maple nuclear l a checkers case that that there's there's not only sufficient clarity there's a direct road map and and the reason why i think california which is distinct certainly from pennsylvania  comes out the way it comes out is it disassociates the perspective of either the injured party or the insured because it's not the actor it's the act that resulted in the direct harm here the act that resulted in the direct harm was certainly the molestation and briefly if i may the other component i teach you a little bit excuse that term reliance on that that this all state case in a couple of other cases is sort of a quasi i question have you embrace a concurrent cause analysis when certainly just like the farmers court noted very clearly if you remove the molestation then allegations of negligent supervision retention accent are wouldn't be a cause of action they wouldn't exist and so this is not a situation where you have two independent causes that produced the result clearly not i don't think with desmond would even stand up here and say that the supervision briefly your honors and thank you asked to the concurrent cause analysis what that is really referring to is whether an exclusion applies to the specific acts that caused the accident and so the concurrent causation analysis comes from the partridge case and talks about if there is an exclusion that's a political and there are two independent concurrent causes either one of which could result in the accident that you can get around an exclusion under a third party liability policy  garvie into the third party liability policies are really to contrast with the district court's opinion that the actions of desmond meyer are too attenuated for coverage in california third party liability policies have to incorporate concepts of duty causation and fault in how they set up their coverage provisions and so in this case it is logically inconsistent that the actions of law desmond meyer can be close causally closely related enough to impose liability and yet at the same time to attenuated to provide coverage and so that's really the causation issue that we're raising with the citation to garvey in addition to your honor i agree that it's unclear what means i think the parties have very different views of it in our view it would seem to say to the argument section indo gotto which goes back to the conduct of the insured for which there attempted to be found liable it cites to hogan when they're looking at exactly which type of conduct becomes accidental or not at page five sixty and so it's not entirely clear exactly what the california supreme court meant by that which is why the opponents believe that certification of the question is appropriate if your honour's don't have any further questions i thank you very much thank you thank you both very much for your helpful arguments the case of liberty surplus insurance corporation versus desmond mark construction