amended one and he took the insurance policy and he sat down at his desk and he read them and he put them together and he did what he was trained to do  potential for coverage in this matter as accordingly we agree to provide voice cream with the defense in this matter subject to the reservation of rights that's full o now that claims administrator based his decision primarily on one paragraph in the first complaint and indeed in an excerpt directed one twenty eight the first page of that letter he sets forth the first paragraph in the hand that's that i've pass that reflects the various parts of the record that the district court in this case it's ultimately ignored the question of the administrative looked at before all the lawyers were involved before ninety pages of breach were written with very simple ones as this alleged bodily injury is going to the potential for coverage and i know your are very intimately familiar with all the standards of construction for the duty to defend in this state and every other state in the ninth circuit and i won't go into them here that first cellular dysfunction to the calcium an eye on distribution across the membrane cells of your body i don't i'm not even totally sure what that means but i can tell you right now that i don't want to and it's alleged that it happened is like cellular just function to the printing ability of your blood brain barrier i think before read this i wasn't sure i had it didn't know i had a blood brain barrier but i know that i don't want to dysfunctioning now that's what the allegations are you're on and let and it's intended for cases where the lawsuit against you are frivolous let me say clearly unambiguous with for the record my clients and the other clients of the defendants in this case don't for one second believe these contention that cell phones cause any of these things indeed we think it's hogwash and we think it's based on junk science and someday if we have to go to trial on that it just gets past preemption administrator and by the way the fourth circuit subsequently we reversed the case the judge pacman relied on that's the paragraph it relies on and that was in the first complaint but it's even clearer than that in the amended complaint which judge beckman did have before her she was the first judge actually to rule on the amended complaint and the next two provisions there are from column seven and eight that have been added to the complaint for civil battery and for negligent misrepresentation and again  happens here is that picks up the definitions of the health risks and biological injury just packman in your decision said well there's a lot of reference to health risk in the complaint well that's absolutely true what wasn't mentioned by the district be looking for the underlying trial court that is the maryland liability court to decipher what this case means and she goes on and says is there anything flaw or difference that says the judge who is in charge of the ship the complaint in order to deny its duty to the plant whereas here the complaint can be construed can be interpreted as triggering the duty to act and that's clearly the law the claims administrator for kemper knew and why is that next day those rules were going to be construed as to the same policy in the same language for mom and pop on the corner or an individual and it's important that the rules be applied the same that's why you take the complaint and you take the policy  really after saying this is just one headsets want to talk about and second you can't have that duty to indemnify that's a different issue but what we're talking about now is the duty to defend and there it's the potential of coverage insurers try one other argument in this case that actually judge pacman didn't even buy and if you turn to the second page of the handout this is the argument that even if there is bodily injury alleged that it wasn't because that the damages case holds a limp but you know what she says that your four of three the problem with this argument is that there has that there are no allegations that injury has already occurred in this case the judge peckman actually  just on the first argument that there's no bodily injury but i want to address just quickly because the terriers in their brief before this court have set forth that extensively with the serious there is no damages because of this bodily injury and that's just not true complaint praise for compensatory damages including but not limited to amounts necessary to purchase a headset first of all it's just compensatory damages not center theories right but it says that so that should be the end of the case right there secondly for including but not limited to most points don't spell out every damages they're going to start from but let's talk about the cost of the head because i think judge packman when she it was asking counsel what's talk about environmental area for a second when there's already been damage to the soil already some harm then money spent to prevent further harm it's damages within the meaning of policy it's just clear under the  and we cite that are in our brief but it's thirty four pacific thirty eight fourteen dressing this narrow because that issue the court says that the court of appeals observe the trial court imputed a legal listing meaning to the phrase because spouse get killed on the highway if it's just the stress disorder no that's it's that's mental it's not physical it's not bodily but the court he'll go in and say if you have manifestations of it in your body such as sleeplessness such as headaches such have uniformly studied these and that is what the class has in common that they don't have my cancer and they don't have tumors of the brain but they all have the cellular damage that's  it's not clear what a lot of i think the rule of law is you need an actual injury that's physical and results and i don't that but the question is is the cellular change in actually injury the question is actual is the same language that are in the policies before the courts today injury cannot be read as the equivalent of exposure h p s interpretation urging that exposure alone could trigger  you to adopt as his face of authority the american home products which directly addressed your question your honor and rule that the allegations in this plaintiff's complaint do not amount to bodily injury without more in the context of the insurance policy here and in washington we have a clear case law on what constitutes damages and damages must be compensatory they must be for a loss for harm and the court to look at different home offices and that's not unusual many of these cases have different wash their cases in louisiana have been called for applying we see on a long there's even one in texas i believe that's playing texas or not unusual in cases like this to have different running short on time here the real important here is whether we have bodily injury everybody knows that we have scant law in washington everybody knows that too we do have star information from property damage bring myself along in the courtroom this hence that is the equivalent of slurry while i was trial counsel an appellate counsel in bowling vietnam and that's the following the on the supreme court case made a distinction between a sparrow that has not leaked and you're trying to get money to paper it's not just compensatory it does take compensatory damages including but not limited to so we went on that line alone but there's also an allegation of punitive damages here the washington supreme court says if you get fugitives it's because of that bodily injury this is junk science with say it were true for a second in my client's new the cell phones are terrible awful things we get it from the public we go to trial that evidence comes out and we get hammered for the funeral of damages the flute case