which is appeal number seventeen which twelve twenty four governed by well accepted canons use when interpreted insurance contracts in indiana these include that you interpret a contract from the perspective of an ordinary policy holder of average intelligence when reasonably intelligent people can interpret the boss language differently i mean there's an ambiguity and you construe those ambiguities in those policies strictly against the insured is especially true when you're talking about language that purports to exclude coverage when the exists because the language used the ambiguous terms are construed in that they were the in favor of the insured for summary judgment what i'd like to do is give real brief synopsis of the factual background and then explain why the district court got it wrong with respect commercial property in lake station they expected to rented to a relative until they moved there every year there after they it beautifully purchased commercial general liability policies about five years up until two thousand and nine with garcias so they were not on notice at all of anything that the that item was asking about two thousand and nine then in november twenty fourth teen the garcias submitted claims to all three claims exclusion claims and process inclusion i guess i have it seems to be not that difficult to read it the way the district court did that is that what we have here that it is equally reasonable to interpret it different way and i would focus on first that the title of the exclusion which is claims and process is not about focusing on the title of total pollution exclusion well indiana has titles that the right case which he said mentions that but also the structure of the claims process exclusion and the text of it supports our conclusion as does its relationship with with the other parts of the policy as as it does with is also more consistent with indiana case law so let's take a look at the structure this structure says that the claims process and the first part says excuse coverage for quote it seems to refer to the bodily injury or property damage in perth one well it isn't necessarily and a claim can occur over the life of the client occur is not example arise but you know front from our perspective it's the whole first bucket from any any loss or claim to whether known or unknown which is modified b the by the which is in the process of settlement  that again that the when you're looking at two i'm looking at one i understand but it's my own concern is that your interpretation of one makes two redundant i would have a hard time understanding any aversion to that doesn't if you're focusing on the what is what the which clause is modifying is the any loss of claim for damages and there's certainly no reason to believe that what happens that the that the language any loss or claim for damages you know through known loss of claim for damages there's no reason to believe or at least it is a reasonable interpretation to believe that in section one again everything is after the which clause is interpreted is is modifying the any loss or claim for damages ok and so what we have and if you take a look at the atlanta positions they also vacillate as to what the triggering event is when the at some point they say it's the injury or property damage that that creates the exclusion at other points they say oh no it's the two thousand and four letter that went to the preceding property owner that creates the exclusion so even prohibiting disturber reference to an authoritative list somewhere what flexcar says the words of flex are in the specifically identify the contaminant pointing to the whole corpus of federal state and local law and saying it's in there somewhere that's not specifically  total pollution exclusion and the position is that they're entitled to total pollution coverage right not total pollution coverage but the exclusion does not exclude what has contaminated their property because it's not specifically identified in thank you may please the court my name is edward carney i'm here for going to casualty insurance company and i think the questions that you posed is exactly the reasons why plan a casually was put in a position to need to look at adding things to the to total pollution exclusion and redefining the pollutants definition and also to add the claims in process exclusion report well knows indiana is in a minority of jurisdictions that  looked at the pollution exclusion and found for insurers finding that pollutants is ambiguous as defined and as such it is construed against the drafter that being the insurance company and coverage is found and so with that unique situation that indiana and some other minority are stiction zz have placed insurers in that they need to go to the next step which is to exclude these types of losses and what we have here in this case judge forty five years of dry cleaning operations i mean that's really what we're looking at trying to get coverage for or the garcias are trying to get to reform is artistic cleaners operations on this particular site that with with even a little bit of due diligence would have been clearly known as a court may well know indiana maintains a virtual file cabinet where one can type in the address  where one is looking at purchasing property or looking at finding out whether or not there has been any environmental plains and when you go to that virtual file cabinet and you type in this particular property you can see that artistic cleaners was already in the process of these issues and problems before they sold this property to the garcias in two thousand and four and that kind of dovetails judge into these two exclusions now the district court looked if it doesn't seem too difficult to read as the district court read it that is the claims and process exclusion of the problems with that interpretation though is that  seems we have to do something different grammatically with whom to get really textual here with with the witches in those two paragraph one in paragraph two with different antecedents one referring to bodily injury and property damage and second referring to any loss requiring for damages that is at least a little awkward why isn't it enough to make this ambiguous well i don't think it's enough to be able to give because even the only part of the particular exclusion might for damages and that's how the claims and processed exclusions stark's any loss which i think anybody in the insurance industry looking at that particular language is that's what insurance policies cover losses the insurance policies cover losses so i'm not sure that could be any more clear and then it's an oral or a claim for damages so if we're looking at this particular case it's any loss whether on are unknown and then we go into the  a and b of one which first occurred prior to the inception of the policy or which is or alleged to be in the process of occurring as of the inception dated policy which is exactly what we have in these pollution type cases which since geiger in one thousand nine hundred sixty two been up and down the appellate courts in indiana over and over so what what what is our record here show about the origins of the claims in process exclusion i don't think the record shows anything with respect to the actual origin and when it was introduced for example i got to judge i think yeah and we just had the two thousand and nine in two thousand and policies here ok yeah  and if you look judge it doesn't appear as we look across the country that have been many cases that have looked at this particular exclusion and it would appear that indiana has some what will be writing one of blank slate but buying risky property i want to you and i assume you'd say well we want to look we want to actually check and see what's there first right i certainly don't want to speak but certainly in my experience with commercial general liability carriers there are those policies there are those policies where somebody can pay a rather exorbitant song because without it we're talking about in these cases and we're looking at forty five years of dry cleaning pollution you know we're talking about exorbitant s versus a commercial general liability policy which right and let me ask you if i could mr harney about the pollution exclusion frankly i see some pretty clear signals in flexcar indicating bad at least an authoritative reference would be appropriate that would in authoritative list of you have covered or rather exclude pollutants i have a big problem with this particular version with the material safety data each data sheets which as i understand them in federal law are very much can textual that is whether whether a data sheet is required which is the term in a way in policy will depend to a great extent on the nature of the employer's safety data sheet but a lot of those where it wouldn't or flower dust or would store in cartridges and so on and so forth and so you can't tell whether an amnesty is is required without knowing an awful lot about the context of the situation and of the bit how it's how the substance is used your honor my understanding of how osha deems whether or not something is required of a m s g s sheet is whether or not the material is hazardous and they look at two things but it's in context right it certainly can be in context but at the same time oftentimes you'll see you know and i quote you wrote you mentioned salt water would be another relatively innocuous but clearly under certain circumstances perhaps it was you know that it's going to be hazardous but that osha doesn't look at water and i've never seen a single time where water has been one that you would think would be a hazardous substance but but i think when we're looking at  the kind of trick back that in the asperger's put insurers and saying well you've got to do something that apprises the insurer of what they're not getting coverage for if you're going to exclude certainly with the first reference in the pollutants first clause of the definition or all material for which a material safety data sheet is a wire that's something that certainly is going to  apprise someone that and i think anybody that's you know involved in any kind of commercial enterprise kind of knows of those types of things if they're looking at what may or may not be hazardous to employer either from a health risk or from a physical problem they have of the wind in this kind of a context though when you're talking about prior operations years earlier the for you that now well i think i think going back to what you said we've got folks buying a commercial piece of property right we've got a policy that's written in the present tense agree is required you know we've also got some pretty nasty stuff here but but i just i  looked at another you know policy provision that wasn't even involved in the particular case that flex star language included circle and this and that they were trying to look at other federal statutes because as as mr case would like the court to look at a pollutants exclusion is you'd have to list you know one to coral ethylene benzene one to three tricor i think you would have to list every single possible derivative contaminant possibly exclude anything which is exactly what we have in this case if you look at the record you know the environmental assessment talks about the myriad and so trying to find that enough to improvise the ensure the insured as to what they're not going to provide coverage for the total pollution exclusion is is i think it walks the edge of giving anough uprising to the insured with them as the sheep without just saying pay and everything that's ever been listed many because i'm not sure how an insurer is ever going to list all we do with heating oil so i think in this case judge that clearly is excluded and that is one of the contaminants that we were there was there pretty much in  well authoritative i think that is is somewhat problematic because like you said it's in the present tense and things are going to change depending upon particular situations but in these particular cases the designated evidence is clear that that has retained consult experts said no doubt every single one of these would be required to have them asked to sheets this is not even a question we're not talking about salt or water in this particular  case it's i think you have to look at the claims and processes clues and i think that's the court should direct its initial attention to on this particular case with these particular facts pollution in the process occurring over all this period of time redundant well i don't think it's redundant because as you're looking at drafting these types of exclusions and you're trying to articulate as best you can particular hypothetical and make them up the particular hypothetical we have here is exactly what actually have in this case any loss or claim for damages arising out of it will go to property damage because clearly we're not talking about bodily injury whether known or unknown which is in the process of settlement adjustment or suit will this particular situation judge when the garcias bought this property artistically yours was in the process of doing just that so when you're trying to draft that where it could clearly be a situation where either a prior policy holder or they could have been adjusting if the garcias when they purchased the only one policy perhaps it already got a notice from i b m in two thousand and seven two thousand and eight we're in the process of just to get that makes it very clear that that type of suit would not be covered and especially when you consider indiana's law on the continuous trigger issues and the continuing problems with these pollutions problems section t that clearly is work to would become appropriate and even more particular the exclusion that would be applicable in the case but but i think it's the same situation with artistic cleaners again it's in the process of being adjusted to be read and given operation to determine the source a look at the policy as a whole and when you look at this policy is a whole judge as you alluded to total pollution exclusion added to claims and process exclusion opinion in all aspects and if it looks at the pollution exclusion because it doesn't find the claims of process was the appropriate mechanism for granting summary judgment but it find that the pollutants definition satisfies and deal thank you very much thank you c diligence they could have said if you knew or had reason to know every didn't notice require every notices to find it's in terms of actual knowledge ok so and that's what the known last doctor in again is addressing if you have actual knowledge then you're not covered ok under their view even if you don't have actual knowledge you're not covered and i say i think i might have heard counsel say something different he said in m was what was interested in asa they probably didn't suffer a loss will they enter the voluntary remediation program so to the extent the clinton process deals with you know any loss or claim for damages which provision deals with and it's not that the damage preceded what was before inception it's the last fork lost or claim for damages which preceded the inception now if i could turn briefly to the the  pollution exclusion for for just a minute there is one page in in our expert report it's not like you know if this was something that it was we would be difficult