really considering the pleadings and strictly construing the total pollution mix pollution clause against evanson is there at least one claim for property damage or bodily injury caused by the in that than evanston has a duty to defend and the court should reverse and render judgment finding that everson has a duty to defend in the underlying camarade a case still pending in the state court in connecticut if the court or to that first question is no then the court reaches the second primary issue which is this court's era guess exception to the a coroner's analysis as i think  claim that would be covered notwithstanding the total pollution exclusion clause i think the court just needs to look at the pleadings in the underlying complaint specifically the pleading referred to s p f being in a quote defective an unreasonably dangerous condition that it was unsafe and dangerous that the s p f can result in property damage that the s p f would dry within a few minutes time it was safe at least that was the allegation that the come out as late as two representations made to them however they found out later as they allege that there was a least a curing period of at least twenty four to seventy two hours they specifically allege that their property damage damages were caused by the product and they're very few instances in the complaint where the term cause that word is even used but when it even if she was just observing from a far but could see from a door there other allegations were mrs camaraderie and specifically that every day there was a five day installation every day after the installation they were done with their work mr cammarata would come back and for an hour each day says in the place of mr commoner i'm sorry mr qanbar camaraderie returned to the house every night for at least an hour to inspect the work performed by the defendants during the day this get into your desire to present extrinsic governance with all the p was inspecting the work that simply could mean you could stand there and look at it from twenty feet well it and the only way you could have been harmed by the  would have been the fumes from the foam but reading of the complaint well i think reading of the complaint first of all this does go to the personal injury claim i think our best argument as to just looking at the eight corners of the pleadings is that we have property damage property was in another part of the house that the fumes would have reached i don't know how it could go back but that's the claim well that the case like that it's not like the phone the s p f somehow was on the furniture and look well that that different there's a difference between the property damage to the the structure of the real property and the personal belongings i think from the allegations the personal  were only affected by vapors but it's the structure itself the fact that now permanently there is s p f that they alleges dangers attached to the structure of this house that that creates a real property damage but similar to as if they had installed as best as products and i think justice parkdale in your panel opinion that you were on the mid continent academy development case in that case on page three twenty the court states unintended construction defects constitute allegations of property damage undersea g l policy sufficient to trigger and insureds duty to defend here in the in the pleading have a defective product and unsafe in another itself the s p f that's how it's defined in the complaint the fact that you have a dangerous product is enough by itself whether there are vapors or not doesn't matter it's the fact that you have defective s p f in the house is sufficient under that to the academy development case that creates a property damage as the comet or alleged they say as a result specifically they say as a result of the presence of the product in their home this is page ten sixty four in the record that the plaintiffs have suffered and will continue to suffer property damage including but not limited to the loss of their home so as the texas legislature in section one forty nine point zero zero one of the civil practice and remedies co the texas civil practice and remedies cone code defines in this best this claim a number of different getting to judge park barksdale your question about the difference between the property damage of the real property damage claims here i think there's there's enough facts for the court to at least reason reasonably infer from the that there was physical contact with the s p f now there's no explain the fact by the husband and wife by the husband and wife you know what you wanted the court to allow extra in the government about if the court were not to to infer that that's what happened then yes we wanted the court to apply that your guess exception to allow the undisputed extends again is that both mr and mrs camaraderie physically touch the phone during the the instances where they would come in after the installation was done after each day and physically feel the phone in your honor judge barksdale you said that you have about well inspection what does that mean the oxford dictionary defines inspection to examine something to ensure it reaches an official standard and i'm not i don't know what mr comrade of his qualifications are but to the extent he's inspecting foam that's open straight between the rafters if you have an hour five times or four i guess it was four nights every night after the installation that to the extent they've alleged insist that he inspected the phone i think it's reasonable to infer that he touched it if you were inspecting fruit to make sure it was a good enough condition to put on the grocery stand i think you can infer that you would you would touch it and i think of course we know from the undisputed deposition testimony  fact during those periods of time that he wasn't inspecting the phone i think it's also important that the court for purposes of the duty to defend analysis  the fact that the court has to any any facts that are under speeded to the extent there's any question you must find in favor of the insured the fact that there are allegations of respiratory distress or vapors shouldn't the court shouldn't be making any sort of a scientific assumption that merely because you have restless respiratory distress that that could only result from in help inhalation of vapors and we've  some some of the words in a footnote of our brief and i think it's even mentioned in one of our best cases the clarendon case the that's the wet cement case from judge atlas in the southern district that physical contact with the wet cement and the clinton clarendon case could have resulted in respiratory illnesses just as the footnote cases that we cited in our brief so you have respiratory problems without enabling s i'm not a doctor but i did refer to a case the one example case is the this is us versus golf park water company this is southern district of mississippi fourteen federal supplement second eight fifty four of the they are the united states expert in that case dr ferry he did he his opinion or i'm sorry his opinion testimony in that case was that simple contact through bathing in i believe it was marine waters that had sewage fluent in it was sufficient to cause respiratory distress the same would apply we gave it was another example case that we gave were the test the testimony in that case was that  you know physical contact with food allergens i mean you know i'm sure the court is aware of children these days have lots of peanut allergies even touching the peanut can cause you know someone's throat to close up we there's certainly no allegations that suggest whether that happened one way or the other but whether it was by physical contact or the in the life of the vapors but i think the court in this context as to construed the pleadings in favor of coverage by finding that that respiratory distress could have been caused by something other than inhalation and i think that's what what is important in this case primarily is to focus on the fact that we only focus on it's not it's not that there are claims that are clearly excluded to the extent vapors weren't hailed those would involve the the requisite movement necessary for the total pollution exclusion to apply the question is whether seen one single cla that does not involve that requisite movement and we think there's enough facts here to suggest that that happened and therefore there is a duty to defend however if the court finds that the the allegations are not sufficient to provide that there was property damage from the s p f itself its presence and its installation or that there was bodily injury resulting from the resulting from the s p f or the the opportunity at least to have physical contact with the s p f during the the inspections that were done then the court would apply that your guess is exception and i think where the trial court got that wrong was the court basically said well look there's all these allegations in here about weber's and it should be noted when you read that there's only two paragraphs in the the summary of facts section that even used the word vapors and then the summary of facts section is paragraphs one through forty nine in those two paragraphs t this that used the word vapors it's talking about the failure to warn about the fact that vapors might be emanating from the s p f after it's being installed but there's no allegation that the vapors actually caused the damages in fact  in the list of paragraphs that judge rosenthal thought were relevant to their duty to defend analysis she excluded paragraph forty nine which the last paragraph of the summary of fact facts section and paragraph forty nine is the only  allegation that actually says that the car the part of their damages that they're seeking are cost to investigate the damage causes so it's clear from least express allegations that even the summary of facts section that that evanston believes was the only sections of facts relevant to the duty to defend analysis they don't even know what the cause was so i think it's reasonable for this work under the duty to defend a quarter's analysis to find that  did there it's not clear what the damages cause is worth so i think it's inappropriate to assume that the the part of the personal injury claims the bodily injury claims were only caused by vapors resulting in  respiratory distress other than the the fact that the owner of the have inspected and you say we should infer from that that perhaps touched it is your any other allegation about in the overpla inspecting or touching there's only three plaintiffs and only two of them would have had the opportunity eyesight so i think as to mrs schlegel the all of the allegations about mrs slagle were that she was in the existing home and would have had an opportunity  or about the why well the wife did inspect it sit cording to the wife she was that this is page ten thirty six of the record the camaraderie was both of them returned to the house periodically over the next four days to check on the progress of the insulation installation and then course more specifically mr conrado would inspect for an hour every night the the work but as to the total i'm sort of the era guess exception basically what judge rosenthal what did they say well look there's claims here about vapors so my analysis is done the exception doesn't apply but whether the whether there were claims for vapors really goes only to whether or not there was a conflict in the pleadings and i think that it would when you read all the cases that say well there's a vapor other some kind of gas being emitted and there's damage the total pollution explosion the client applies cases over what what judge rosenthal should have been doing is looking at are there other claims that that don't involve vapors and so in other words when she said well there's claims for vapors therefore i don't i think i don't need to apply the exception what she should have said well is if there's claims for vapors is there is there facts that would make it conflict to suggest that there was physical contact and there are no the it's they even say both the evanston briefing and jones rosenthal make clear that there are no facts suggesting expressly that they physically touch the phone therefore the era guess exception applies as there is no conflict in the allegations and if i could just i guess oh my time's up i'll wait for the bottle to address issues at hand for this court in order for the pola to create the duty to defend based upon these pleadings or this particular pleading the second amended complaint the poll has to butcher both the eight corners rule and the exception to the rule before getting to the exception i think it's very important to talk about the rule itself and justice barksdale the most recent decision is one in which you participated coming out of the score the test masters case and i think it's very instructive to look at that case and look at what the rules call that's called the eight corners will because you're going to have to look at the four corners of the pleadings not in isolation four corners of a paragraph or the two sides of a sentence and take it out of context you've got to read all the pleading allegations in their entirety and that's what test masters tells us if you recall and test masters the issue was if it alleged trade dress then there was going to trigger coverage under the state farm policy if it did not then you only had a trademark infringement allegation or no coverage would exist and would test masters urge this court to do was to read a particular sentence concerning the website allegation out of context from the rest of the pleading and that's kind of what the poll is doing here it's urging the score to read conclusion stated in the legal theory sections of the complaint out of context to establish their own pledging property damage and personal injuries from some source other than vapors and that would be improper such as the taskmasters where the court went on to say that suggesting that you just take this one allegation and read it out of context from the rest of the counter claim in that case would be improper just like the poll is searching here another thing which is important is there are fourteen pages and forty nine paragraphs under the factual allegations section of this particular complaint and in those paragraphs and on those pages the camarade of those state with specificity how did their damages occur throughout this whole song and when they're talking about how their damages occur they're talking about seepage migration of vapors coming from this insulation damaging the structure of their home and because as they have stated in their complaint the vapor barrier set up we're not them properly it migrated into the other parts of the home where they were living and when you read the complaint in its entirety you can see what's causing the damage that's the vapors now the part of the complaint poll of wants to hang its legal hat on are those allegations and those legal conclusions and there are causes of action section and those causes of action section they talk specifically and they address in summary fashion we sustain personal injury and property damage that's the conclusion that they draw well you really can't look towards that because this court a few years ago had in front of it a case called evanston vs legacy of life and legal conclusions and summary a factual allegations contended that you know body parts were property and they needed the property characterization was an element to their cause of action just like in this case the characterization of there damages is a relevant element of the cause of action is a strict product liability cause of action and one element of strict product liability under this allege they they allege as an element of their strict liability damage claim that they have property damage in the home but when you read that in isolation yes you could argue by straining interpretation of this complaint that its mere presence is quote property damage but you can't do that because test master tells us you have to look at all the entirety of the complaint and look at what is the factual origin o there is property damage and that's what evanston vs legacy appoints tells us you can't just merely look at that conclusion that there is property damage how did the alleged property damage get there and that's when you must go back and look at these fourteen pages of allegations and these forty nine separate paragraphs and all of them clearly say that the property damage got there due to the migration of the vapors and the presence of the vapors the presence of the vapors and the presence of the then the migration into that part of the home in which they're living they're very detail about that in their factual allegations section what they're not detail about is when they raise the conclusion on their product liability claim and this court has repeatedly said following the texas supreme court precedent that we can't look at just these legal conclusions in summary fashion and form we have to look at what are the factual origin of the damages those property damages and it is these vapors i don't mean on a ledge that i have dangerous because  but the apolo a product what is its existence it's the product emanating the vapors that has created the damage when you go back to the factual allegations and that's where the pope was getting it wrong it wants this score and it argued the same thing at the district court level that you only look at these conclusions stated in their legal theories and you don't read the complaint in its entirety and this court has instructed us just in two thousand and fourteen that you've got to look at it in its entirety now go into the as as i understand the plane wreck me for example of looked at a couple of these paragraphs where they say they didn't put up a proper viper barrier and that sort of thing allowing these fibers to spread throughout the house the only causation apparently alleged in the complaint for use for want of a better term those that give rise you have one set of damages so you look at the origin of those damages and that's what you're supposed to do when conducting this coverage analysis the fact that you may have numerous legal theories pled to recover those same damages is irrelevant the fact that they have pled certain negligence claims and misrepresentation claims and negligent construction defect claims against these contractors the damages that they're seeking are the same that they're seeking from a poll law and that's the property damage and the personal injury damages and then you've got to see how were those caused you have escape to go into another room no one where do you get that i am i wrong about that you're not wrong about the justice davis because in the total pollution exclusion itself  which it is included in this policy it uses the language here it says it excludes bodily injury or property damage which would not have occurred in part but for the actual alleged or threatened discharge dispersal see footage migration release for scape of pollutants at any time and when you  bomb that is dispersal of the pollutant only if it's if it not if you're spraying it and not if the remains were supposed to be and if you look at this court's opinion in the in the noble face noble energy vs by two minutes five twenty nine federal third six forty two this that seems to be the seminal case on the pollution exclusion and in order to trigger a duty to defend where one does not already exist the eight corners rule just does not apply the reason being there are three general requirements  has noted in ace american versus reports that one first has to be impossible to discern from the pleading allegations what's going on second you can't have overlap between the factual allegations it has to concern only coverage it cannot concern both coverage and liability and third you cannot have the extrinsic sevenths contradict something in the pleading w don't have here is one in three as this court noted in the starr text decision in two thousand and fourteen which justice dennis was on the panel that in that case you have a one or two sentence pleading allegation from which the trial court below in this court said you cannot discern what factual allegations are giving rise to this dispute therefore it is necessary for us to go outside the pleadings unlike the present case you have fourteen pages and forty nine paragraphs of factual allegations or you can easily discern camarade those have pled over and over and over that it was the migration of the vapors from where they should have been kept in the renovations to where they went into the living space i guess you're saying that if the house is damaged or dangerous because of the insulation that was for a gnome wall the insulation is where it should a show that would not that would not be pollution that would but if if if that if your if that was the only allegation in the case and that was a factual allegation as opposed to appearing as a legal conclusion in a legal theory portion of the client and they allege both factually and for instance factually they they contend that factually what we have here is they sprayed in capsulated insulation which now has dried and that insulation as was designed is an unreasonably dangerous product and now we cannot live in our house period and it has damaged our house in because it was sprayed and left in the condition it should be then that would not be excluded from by total pollution exclusion because it's where it should be it's sitting there it's in capsulated but that's not what the planing says that's not a reasonable construction of a pleading there is nothing in the factual allegations that and even suggest remotely that that's what the camaraderie are complaining about when you read as test master says the completing in its entirety and you're not taking out of context those statements so getting back to the exception to the rule the corners rule that the poll advocates we've already talked about how it is very possible to discern what the camaraderie is are saying here and when you do this earn it you can tell they're talking about the vapors very interesting and when you draw a comparison to test masters the one thing the camarade is keep saying and it's contradictory is that there was some touching or contact and that's totally contradictory to what's in the complaint because the only thing that they complain about in terms of bodily injuries or personal injuries other respiratory distress caused by inhalation of the fuse and as the court said in test masters the the words trade dress were never used in the test master's complaint that this court construed similarly the words touching  contact don't appear in the fifty some odd or in the thirty some odd pages of the camaraderie is complaint and so if you're going to indicate that it was touching or contact that created these injuries that's directly going to contradict the pleading allegations that it was respiratory distress caused by vapors therefore the exception to the rule cannot be applied in this case given the fact that this case involves a very simple direct application of the eight corners rule upon which the district  relied there's little more that i have to say than what's this panel has any other questions of me i would return the balance of my time to the court ok thank you very much thank you prefer they specifically allege that the product itself as they defined it in their pleadings caused property damage caused personal injury and therefore on a liberal construction of the express eight corners of the pleadings in the policy they have evanston has a duty to defend that should be the end of the question as i understand the complaint they're saying the product which is sitting in part  our home and done extensive damage to parts other than part of a two parts b c d in the old property and personal injury and the only connector is where they say it's these vapors which were allowed to escape in the house because there wasn't a proper vapor barrier etc etc judge i think this case is different from a lot almost all of the cases that  against us so to speak in other words this case is similar to the very similar to the doe run case in the clarendon case first of all there are one differences there are two cock potential causes for damages in this case one is the vapors undisputed those are excluded that's not the question the question is are there other claims that would not involve the requisite movement of council concedes as required for the total pollution exclusion to coverage so here there are claims if you read the the allegations not only in the facts section but the allegations that even judge rosenthal agreed were relevant to what is the wording of damages that that those allegations include damages caused by the product not by papers from the product you'll see that you won't see the word vapor anywhere in the one single count asserted against loophole in this case which is count seventeen and i think it's also important that the court applied the roads case from this court seven nineteen f second one sixteen where the court said whether a complaint pleads in the alternative or alleges more than one cause of action the insurer is obligated to defend as long as the complaint alleges at least one cause of action within the coverage policy so here we have one difference between allegations and claims well i'll give an example gree that you haven't read about about a client can i answer your course question don't you agree that you have to read the allegations the factual allegations not how they are couched in legal filings well i agree with that your honor however i believe that that count seventeen includes not just alligator legal conclusions like for example the conclusion that under the connecticut products liability statute that loophole is a product seller but it includes allegations that are found nowhere else in the summary of facts and it all is only that is a summary so the facts that are included in the count section are in addition to those that were incorporated from the first summary of facts sections into the