regarding exclusions they first say their exclusion is to be plain clear and conspicuous the second thing that they've said is that we're going to narrowly interpret exclusions that seek to take away coverage that bin that has been granted in the surance policy and the third that has direct application to this case is that we're not going to the courts or not can insert terms in which the insurance company chose not to put in the policies so what we have in this case and before i get farther i like to reserve three minutes for rebuttal what we have in this case is  kinsale have three opportunities to exclude misleading advertisement expressively first of all they could have actually drafted the coverage clause insuring clause so they did not include misleading advertising second of all in the exclusion itself they could have explicitly said as the statutes say faults were misleading advertisement is excluding and the third thing that big could have done is they could have had a definition within the policy were to find false advertising to include among other things misleading advertising so what we have in this case is a underlying complaint against the car pools and the others alleging clearly faulty and misleading advertising but if you look at the allegations of the underlying complaint what they're actually alleging is confusing similar color scheme in the advertisements they're used by so car pools a confusing similar color scheme they're not saying that the color scheme was in fact felt or all we have is that it was alleged it was false and misleading it's in the complaint on page one sixty that they had faults and misleading advertisements that had  it's not it's not stated in the complaint whether it was on the products or not what it's saying is that they used in their advertisements similar color schemes in promoting the products so it could be on the products i agree but it's not being entirely clear from the complaint that that was the only allegation that it was only on the products because i understand what the court's going on that they're going to the third prong of the exclusion which deals about misleading and confusing advertisements and it's not necessarily limited to just the products it just says they use a similar color scheme so that in an up a self is that they were talking about on the products well that's part of what they're alleging there's no doubt they're talking about on the product like this where the complaint but they're also talking about similar color schemes in the advertisements themselves it doesn't make diamonds then they get the clear reading of the exclusion would exclude the only diamond jewelry but not the other types of jewelry which would be gold jewelry in kinsale is a brief they said that the crux of their argument is that the the misleading advertising is a subset of false advertising and they have actually backwards because i would agree that any advertisement that is in fact false is probably confusing and misleading but any misleading advertisement well it may be false it may not be false it may just be misleading it just may be be using a true color scheme but not necessarily fa while they are claim because it doesn't express exclude misleading advertisement it doesn't state misleading advertisement the underlying statutes distinguish fault advertising from misleading advertising and actually expressly refers to false advertising it says actually it does council it doesn't look at the residual class the last clause of two and and three for that matter correct or any other paez was saying earlier with products itself it has no reference to advertising because if it did include it did this explicitly include false advertising then there would be no reason to have prompt to so probably you come back you're going to talk to us about what advertising which allegations in the complaint include other advertisements that covered that but now can you turn to prong two please yeah prong two says or other causes of action arising out of unfair competition the the false advertising that is not necessarily unfair competition cause of action what what they are referring to is a different pipe of conduct in fact in the complaint there's different allegations for unfair competition vs false or misleading advertising so independent of what that broad broad statement says out of unfair competition you cannot eliminate what it earlier says when it seeks to exclude false advertising and thereby by not saying misleading rings ok when i got the news in that suit there were i believe seven claims are now at doesn't seem to me that any of those claims  troll versus lamb says we don't look at the labels of the causes of action so the fact that the cause of action may be labeled false advertising is not conclusive determinative of whether or not there is actually a duty to defend but if you look at paragraph one sixty one sixty one one sixty two and one sixty three they are clearly alleging false and misleading advertising exclusion so the fact that the label is false advertising the actual allegations in the complaint of coke coble imitations or confusing someone marks in trade dress that  inhabits self is a misleading advertisement but the language in the policies the policy does not apply to any claim or suit arising out of any and then the three prongs correct that then i thought the rising out of is more of a conservation kind of the standard the actual question is state farm mutual auto insurance versus partridge can cow ninety four early so how do you construe it merely and read it into the exclusion how would i really exclusion with this narrow interpretation that you're suggesting applies to the term arising out where in the complaint what you take a look at the complaint i will the underlying complaint and where it suggests that the complaint alleged advertising in some manner other than on the product of it is important as to paragraph one sixty and it suggests that the advertising there was coming from the product and i think you will hear from the other side exclusion and i think that that is actually the dispositive issue here respectfully to other counsel state farm case doesn't really mean that the words arising out of are always going to be interpreted in a narrow fashion because stay firm actually held something different stay firm dealt with the concept of concurrent conservation with two different particular causes of the loss converging to create the same bodily injury and what happened in state farm was the insured had purchased the gun and he saw it off a little portion of the pretty mechanism on the gun to create a hair trigger type situation put the gun in the car and transport of the gun to a different location unknown unfortunately the bumpiness of the road was one of the causes that caused that gun to go off and create a bodily injury type situation  state farm correctly conceded coverage under its automobile policy which had been in ensuring agreement that said we're going to cover claims arising out of use of an automobile but say from also that issued a homeowner's policy to the same insured state farm said well if my auto policy covers arising out of an auto and if i have an exclusion in my homeowner's policy that says it doesn't cover arising out of an auto then this insured shouldn't get coverage under both policies and the california supreme court said no that's not the way it works and the reason is is because insuring clauses are supposed to be interpreted broadl and exclusionary clauses are supposed to be interpreted narrowly it's basically a throw away in the supreme court decision where they mention the words arising out of because that that wasn't dispositive of the issue that the  disposition of the issue was you know whether it appears in and sharing agreement or an exclusionary clause and i think that's a key distinction that isn't even addressed by counsel either in his papers or  in the oral argument and and fact it's been held by the ninth circuit under three different cases that's underwriters that was verse of london versus cordova that's two eighty three f second six fifty nine continental casualty seven sixty three f second ten seventy six and most recently in two thousand and seventeen rule was reaffirmed in l a lakers vs federal insurance company eight sixty nine f thirty seven ninety five all those cases  hold specifically with regard to an exclusion that the words arising out of her supposed to be given very normal meaning which is a broad expanse of the meaning of exclusion contract it so i submit to the court that if the court were to accept the appellant's position it would fly in the face of civil code section sixty forty one which says the whole of a contract is to be read together so as to give effect to every part of it it's reasonably practical and each class has to help interpret the other you can't read the words arising out of this exclusion out of the exclusion i think the l lakers case which came out last year is particularly important for the court to consider and in fact is binding on this court as to the ninth circuit's interpretation of what what california law is and  in fact the l a lakers case dealt with a t c p a claim in which there's no mention of the word invade invasion of privacy in the statute and the insurance company said well i've got a exclusion in my policy that excludes coverage for invasion of privacy but also includes excludes coverage for claims arising out of invasion of privacy and the court basically held that the  is in fact invasion of privacy what happens when you get called by a robo call on your cell phone in the middle of a meeting you're invading somebody somebody is privacy when you're doing that ok so let's go through the exclusionary clothes let's go through the ip exclusion and it seems like this case really boils down to clean three indeed his complaint misleading advertising is not mentioned in this exclusion it's not mentioned in the exclusion that's true your honor said the exclusion itself says this insurance does not apply to any claim or suit arising out  actual or alleged false advertising false designation of words in trade product this disparagement trade libel are other causes of action arising out of unfair competition so it's got the catch all for other causes of action arising out of unfair competition which should cover it but it also has the catchall of arising out of false advertising and so i think that if the court is going to go into misleading could be a false it could be false advertising is  what is a false advertising claim includes a misleading advertising and that's apparent in the american home products case which is five seventy seven f supp one sixty that's the common law interpretation of the lanham act before nine hundred eighty nine in which the court the court held yeah our claim for false advertising under the lanham act includes misleading advertising that's what that's what the common law was before nine hundred eighty nine and then the more the mccarthy treatise which is cited to page fifty four of our brief shows that yes in one thousand nine hundred nine congress recognized that that's what the common law was and so they added the word misleading to the statute under under the l though to get to that argument your honor first you have to establish that there are two reasonable interpretations of this exclusion right so the way that the analysis goes is is that is that you have to show two reasonable interpretations and then you have to show evidence of the reasonable expectations of the insured and in this circumstance i submit to the court that the plain meaning of the policy is arising out of you can stop there you never have to get to  subset or a different a different type of tort claim for misleading advertising as opposed to false advertising i think that's the distinction it's the distinction that's made in the case law is the distinction that's made in the in act both both types of claims are right there they are false advertising in my world is a is a term of art and coverage b which is for personal advertising injury regardless and i think that the argument the council is making is that well there's no there's no work to advertisement in that product three it only says you know arising out of the products but i think is the court correctly pointed out products are depicted in these political advertisements and i think the court asked earlier whether there was depictions on the internet i didn't find anything in the complaint that said that there were depictions of these products on the internet  defend i mean you got this complaint in three days you turned us around so we have no duty to defend isn't there are nuff is there enough and one sixty one sixty three to at least say that you know there's a duty well your honor a roll back to the arising out of language in the ip exclusion which covers all three prongs and it says claims arising out of any of these things that are listed in the ip exclusion and i think that's really defense here that's what the suits all about well true your honor except except for the fact that you have to look at the way coverage b which is personal advertising injury is actually defined ok and the way that coverage privacy and use of another's advertising idea and advertising so that's the way the coverage is actually defined nowhere in the coverage definitions does anyone ever require that you lay out all the elements of each particular type of tort and if you did i mean the policy would be forty five pages longer i mean a review to be crazy to to have to require an insurance company to lay out each individual element of each that false advertisement includes these claims on the lanham act includes the california version which is i think is business and professions code seventeen five hundred and includes false advertisement under  look at the exclusion itself it's not only says false advertising but also lists a number of different related torts and that's arising out of actual or alleged false advertising fos designation of origin product disparagement trade libel or other causes of action arising out of unfair competition and my point there being that if it goes to the reasonable expectations doctrine right because even if you even if you say that there's no fault there's no plain meaning of this exclusion even if you get to two different reasonable interpretations there still has to be evidence presented to the court and there has been no evidence at all in this case of the reasonable expectations of the insured now i submit to the court that yes that is an objective standpoint standard for the court to determine but how does the court determine that the only way the court determines the objective reasonable example i advertise a good that disparages another another good i think that that might fall outside of the exclusion of the ip exclusion so there is some coverage here that's not i'm going to competition well it might fall within the number of unfair competition and in fact there was a case that i recently argued to the central district and central district to find the false with  case insurance companies are allowed to accept the risk that the that they want to write under their insurance policies there's no there's no prohibition in completely getting rid of you know the insuring agreement on a particular aspect of the insurance policy and i think presumably a lay person looking at this understands that they're paying a premium for something and this coverage provision cover something so it is difficult for me if you can identify something that actually states the exclusion a business or a person and i think that you could have a defamatory claim a an advertisement that would fall within the coverage both under fourteen i think it's fourteen t and also the express coverage for defamation out of the new insurance policy that would be an example of something in an advertisement that would be that would fall outside of the ip exclusion because the ip exclusion only deals with disparagement not defamation and under the lamp case defamation is is different than disparagement you have to have advertisement that disparages up another competitor in the marketplace in order to be covered is that right no i don't think because the exclusion applies to disparagement exclusion does not apply to defamation i misspoke i meant def i meant definition for getting correct is that your answer that's my answer is an example of something that would be covered but peer international distributed materials and then next paragraph sixty two we spent consume out of money and without such advertisements sixty three in addition on displays in advertising efforts the solar sun rings and squares cream art in conjunction with the color scheme and featuring the sale of all products on third party websites and we tailored just and then if you look at the are marketed to the same group of consumers and often found side by side in the marketplace that's an advertising in injury under the policy marketing it's an advertising engine injury then if you look at more importantly paragraph eighty six which says plaintiffs is a former lease and there are alleges that defendants intentionally adopted identical set talking about contacting various different retailers for the promotion and marketing of such products so that's all advertising in tree and they're misleading nothing else but misleading or infringing on the advertising of s s r which is alleged to be international distributed and done on the internet then you're it would be taking the looking at the beginning part of the exclusion which talks about products are good manufacturers told him we were distributed so the products are one thing the advertisement is prone to if the argument is prong three consumes advertising to then conceal would have no reason to put prong two in there put prong two in there because that was the part of the exclusion advertising covered by that because misleading advertisement if you look at the allegations of the of the underlying complaint misleading advertisements or say paragraph one sixty five talks about unfairly competed but there's also separate allegations if you look at paragraphs one sixty five one sixty seven of reasonable care should have their adoption and or use in commerce of a trademark and trade dress that are entirely similar to this ours trademarks and trade dress would not getting evidence of what one insureds interpretation of policies is what would in objective policy holder reading this exclusion thing and they would not think that they would think that while false s advertising was excluded because it's expressly named what they were carving out of the exclusion was misleading advertisement because they did not express the state that so they can't have a catchall phrase at the very end of the exclusion to now incorporate terms that were not incorporated earlier exclusion so the end of the exclusion were talks about unfair competition has to be in trip and in connection with the same