after all briefing your honour's the issue on this appeal appears fairly narrow it is whether the district court properly applied a state fund exclusion for injuries intentionally  caused to eliminate a duty to defend under an employer's liability portion of a worker's compensation policy we contend the district court erred in two ways first although the exclusion applies to injuries intentionally cause the district court applied the exclusion to allegations of intentional conduct irrespective of whether the conduct was intended intentional injury exclusions to preclude duties to defend in cases where the insurance company cannot establish conclusively that the defend that ensure it intended to cause injuries  fact the cases in which duties to defend are denied under such clauses tend to be cases in which the very elements of the cause of action against the insured requires proof of intentional injury in order to establish liability against the insurer if i don't know what is the meaning of contention that let's assume you're right up to that point what is the meaning of intentional injury in this context my understanding is that quarry and includes a category of knowledge that cam actions were highly probable or substantially certain to result or an act and herenton harmful yeah the inherently harmful part is the part that comes from penney i'm sorry i did not catch the reference the first part sure take her rock and act i'm within ten changer i e an actor liberally done for the express purpose of causing damage or intentionally before him with knowledge that damages were highly probable or substantially certain to result exactly that is correct that would be a jury instruction to apply that particular exclusion so therefore you have to explain how these causes of action for conduct that occurred during the course of the rising in the course of employment and where the employees were not precluded from proceeding against the employer by virtue of the workers compensation purposes of getting to the sort of liability that we're talking about here under fair mino it does not matter whether the employer intended to injure at all in fact i could refer the court to a line from for me no seven kalf fourth seven no one at page seven eighteen the court referred to the acts there and they were acts of i understand that there is a category that doesn't that isn't included but i to know why these particular causes of action are in that category because of what the court said here your honor it's not the cut it has nothing to do with what the course that has to do with what was alleged in the complaint well what they what was alleged in the complaint was a lot of things your honor including negligent supervision of employees we what the facts the factual circumstances alleged in this complaint is that things went wrong during movie shoes things went beyond the expectations of the plaintiff employees actors of exclusions well the acts the acts maybe what how they're outside the compensation bargain as well the district court found and i would agree that when that when the employees allege that they went into these movie shoots expecting a certain amount of control over what happened that they were that they had signed limit sheets that they were told that they would be able to stop things at any given time and they allege although it's disputed they allege that that they were not permitted to do these things that they became frightened that things happen to them that they did not consent to that they lost control that they were coerced and the violence was between the kinds of claims that are covered by worker's comp and therefore i want them the exclusivity problem which is exclusion of four and then you say there's a second dividing line in that there is is something within the half of which chart and tensional acts or for some other reason beyond the employment contract or understanding but are not not an intentional  i we talking are you eric are you saying that all of the causes of action alleged in these three complaints are outside exclusion for and outside explosion five or some of or just some of them pretty much all of them i think there's a couple as we go through these your honor i'm looking at excerpts of the record one ninety two which is the cameron adams complaint that's the case the face page it lists eleven causes of action  negligence negligence per se intentional fraudulent misrepresentation and so forth the ones that i think would probably be out would be civil conspiracy to commit intentional and fraudulent misrepresentation  perhaps intentional infliction of emotional distress although i do not believe that's asserted against the employer i think it's asserted again it's individual defendants so the reason i think that these all fall within it and i have  which within which what i have been talking about with respect to for me no your honor and think we have some confusion here between you and me we're talking about different things we raise the issue for me to not to address exclusion for at all we that the insurer faces has to get by workers compensation exclusivity rule in order to do that in my view they need to satisfy the fair mino test the fair mino test for any of these causes of action it can apply to and to the negligence claims and i say this because the court specifically says that intent to injure does not matter it's not the motive behind the conduct that's at issue it's the nature of the conduct and the employee's expectations that govern whether the insurer here faces it is something that does not qualify under the test your honor set forth earlier that would be a jury instruction on how to apply an intentional injury exclusion there is nothing inherently harmful in negligently supervising for example employees who went beyond what they were supposed to do in directing or staging video shoots as in any movie several of the causes of action here specifically allege maliciousness intentions that you want and that's true and that's true in lots of lawsuits in which and intentional injury exclusions are raised they irq itself the defendant was sued for punching and beating up the plaintive the defendant said i was just trying to defend myself my potential liability is negligent use of excessive force in self defense which would be outside an intentional injury exclusion according to california supreme court this is no different than that situation where the point the mere fact that the plaintiff alleges that something bad happened that there was bad intent doesn't mean it's true and doesn't mean that's the defend that can't face other forms of potential liability we've laid out i think a fairly clear path and how that would occur here your honor i'm almost out of time  it please the court good morning your honor is my name is jennifer wellman i'm here on behalf of state compensation insurance fund the appellee in this action say fine ask that you affirm the lower district court's ruling where and it properly applied california's workers compensation exclusivity rule as well as the intentional act exclusion in the policy by applying a plain reading of the policy i'd like to go ahead and just start off with responding to what you said jam please thank you ok i'd like to go ahead and just kind of build on what's been discussed so far you are absolutely right your honor counsel and cybernet this entire litigation and in the underlying action complete misunderstanding of california's well i'm not sure how you show how also because my understanding of your position is essentially that there is no gap that anything that has that there is nothing covered by by part two because the ok and if there were allegations that did not allege intent to state funds as not disagree that there are certain allegation except that your position would be that that's covered by the worker's comp exclusion that's not necessarily true with which you example of what i'm sorry something that would be covered so i just named a couple now you know many under labor code section thirty six zero two b three there's a product liability exception that's provided by statute so what would be the you're saying it's a product liability so would it be a condom provided by the defendant is that what you're talking about no under thirty six zero two b three your honor that exception  provides if the employer manufactures a certain product puts it out into distribution what we're talking about in the context of this case in the context of this case state funds position is that these allegations are not covered by part two and that is actually interpret state fund policy and it holds that all is need all that is needed is that an intentional act was committed all that needed to happen was the employer needed to make the statement to his employee he did not have to intend to injure her he did not have to kill her because it does say injury in the in the exclusion and because there's case law that says it's tantamount to the five thirty three and exclusion from coverage and that clearly involves injuries so where are you getting this from your  our district court actually did say that it did not fall in the five hundred three exclusion because that required an additional scienter element that the employer have a preconceived design to inflict injury under clemmer and that is that is what the district court district court said oh ok so the law is as i've stated in the briefed in the briefs is that part two will only apply if an exception to california's workers compensation rule applies cybernet has relied on this common law exception relating to it being outside the compensation bargain what is important for this analysis is that every allegation cybernet relies on it's on page twelve fourteen and fifteen of his reply brief it relates to battery against john doe it relates to the intentional ignoring cameron adams is the limit sheet it relates to them failing to require that their employees wear condoms during the shoots all intentional acts and und required is that the employer intend that conduct so while cybernet continuously tries to rely on these intentional acts in order to get the compensation bargain under climb under for me knowingly exception to apply he's then turning around and saying that those very same allegations are not intentional that's the argument that he's making he's arguing out of both sides of his mouth he's saying on one hand that it's not intentional that are him very clearly but my understanding is that there is some room in this context without the products liability between whites and the workers comp coverage and what is outs not within exclusion five and that is for acts that are intentional but not intended not necessarily intended change is that wrong that is wrong where are you getting that from there i know what actually was clearly to say otherwise in a world where the language has been interpreted to be exactly what five thirty three is in a worker's compensation policy there is no case that provides that and the reason for that i'm in california i'm sorry your honor the reason for that in california is that california has worker's compensation law under thirty six hundred provides for that gap labor code section four five five three in california allows an employee to enhance its workers comp and station claim for willful and serious acts by its employer they are then entitled to have one hundred fifty percent of the benefits they would otherwise be allowed to receive other states do not have that language california says without regard to negligence michigan minnesota new jersey washington they include language in their statutes that say intentional conduct is excluded california does not include that language so in fact while he does argue this gap for me no it does not even discuss part to leave does not even discuss part two cybernet did not point the district court and cannot point this court now to any case in the entire country on the federal or state level that provides that these allegations are covered and what's interesting about that is that it is based on a national accounts counsel for compensation insurance form this language is used by no less than thirty six states in the country and there is not one case that has held that these allegations are covered in this gap they see lisa marie gap there is not one case that holds this quite the opposite there are several cases in california that provide intentional acts battery sexual harassment assault can all fall under the worker's compensation system torres in greenfield all of those cases discuss acts that can fall outside the workers compensation system way of the just record get it right the district court did say that there were some of these causes of action that fell outside the workers comp exclusion but were within the exclusion court got there i'm saying now even with the benefit of the doubt that the district court gave cybernet there is still no coverage i'm actually going to say even if the district court got that part right and gave them the benefit of the doubt let's just assume not that i'm not a judge and jury i can't to decide what a jury would decide in regard to that but that being said that's not what's at issue here obviously we're dealing with coverage of what allegations say if the district court gives cybernet the benefit of the doubt and this conduct falls outside of california's worker's compensation exclusivity rule there are several cases that hold that the intentional act exclusion applies here and excludes this particular conduct because whether they intended to injure not they committed the act and it was intentional but let's begin with the language of the exclusions for a bodily injury intentionally caused by insurer doesn't that mean that they caused it intentionally i e they meant to cause it no your honor all it requires doesn't they intended to act and the only difference here they intended to access attention intended to cause intentionally caused or aggravated by you or aggravated by you and then outside of that to do offer to case home that this is exactly the same as five thirty three that this exclusion is exactly the same as far as section five thirty three my understanding is that it is not a worker's compensation case but honor i would argue that the court's interpretation and clymer the case that the district court relied upon is the accurate standard for five thirty three five thirty three is a different it's an incident surance code it's different than the plain reading of the policy so i would not agree that it's the same standard and that's why the district saw difference and state funded griese there is a difference as well so what is important though and what  ernet mentioned was his counsel mentioned was something along the lines of intent doesn't matter and negligence doesn't matter but i think you're absolutely right he has the analysis kind of backwards and he's a little confused to the breadth of the worker's compensation system and also just like to add and i'm not sure because so when it's counsel seem to gloss over this in his reply brief their own c e o submitted a declaration attached to their summary judgment motion in the district court that wherein he declared under penalty of perjury and i quote at e r fifty four i believe that part two of the policy would cover injuries to cybernet performers that were not covered by part one as long as those injuries were not deliberately caused by well he said they're not covered by part one negligent supervision would be covered by part one that would be a worker's compensation claim which brings me to my next point cybernet continuously uses this hollywood actor example if liam neeson got injured while for filming a stunt in the movie taken that would paul fall under part two and there would have to be a duty to defend the director or the employer in that situation interesting about that is that is the very basis on which california's workers compensation system is based part one if an employer directs their employee a roofer to get on the roof it is a direction that the employers at the employer for the employer to get on the roof if the employee falls off the roof nobody intends for the employee to fall off the roof when he gets injured is he entitled to civil damages no he's entitled to workers compensation benefits because in california that's what workers compensation benefits provide for injuries sustained on the job without regard to negligence he ends his answering brief with this example and says just like here if a hollywood actor was injured on the job performing a stunt and the director told him to it would be covered that is patiently false incorrect he stating labor could section thirty six hundred california's exclusive remedy rule that's a perfect example so again cybernet view of the breath of the foundation upon which california is worker's compensation is founded is completely misguided if we if we assumed or if we went with fiber nets interpretation we would have thousands of cases filed in civil court daily state find a loan gets hundreds of claims a day if an employee is is then allowed to go file a lawsuit against their employer for civil damages that's exactly what the workers compensation system is was created to avoid so again i would just ask that this court affirm the district court's ruling because that is what the law supports that is what the case law supports that is what the labor code supports that is what public policy supports this policy is not unconstitutional it's an end c c i form it isn't forcible it's not an like your owners only have a moment here but on councils i think i can tie in the court's interest in the inherently harmful aspect of the exclusion as set out in the cases and the hypothetical thrown out there because you may recall that  in our opening brief we referred to movies such as zero dark thirty the violence and zero dark thirty is largely torture well waterboarding hanging beating awful doing awful things to people and all in a way that's a way a lot more violent than appears in any of my clients films as peers in lots of movies these days there are such films all the time that go on and you know one one could  certainly put together a theory under for me you know if i were representing an injured actor if i were one of the alleged terrorists in zero dark thirty and the the filming of that of the torture scene just a little way too far beyond what i understood it to be i know versus fed co against the producer this is no different than that situation and the council's complaint is not with cybernet but with the california supreme court in creating this common law a remedy for employees injury injured in those circumstances irrespective of the intent of the producer the director and so forth that's what we have here your honor that's why it falls outside the intentional injury exclusion and i'm afraid i'm out of time