favor of the duty to do so there are many in our view there are many many fact laced questions that were resolved in this case of the time of entry motion for judgment on the pleadings even based on the taking into account the language of the complaint itself that the damages asserted in the days were included but not limited to repair or replacement damages but with all the cases cited by both parties there is no clear direct control and already under the circuits case law there are many factual settings and variations as you get into these cases and in fact most are summary judgment cases based on the development loss of use case loss abuse claim if it's sent back to the district court or his discovery proceeds is enough in the underlying action that that wouldn't be necessary i don't think it i don't think i think discovery would be helpful in that regard i think what we've submitted by way of our supplemental evidence mission council very states that other property damage is sufficient i think also which leads to a conclusion that can be coverage under a property damage and we find ourselves at the mercy of the leader as they sit here today or unable to go beyond much that is developed in the record to this point the selectively looked at that extra expense of evidence it did not look at our evidence on the directed mission there was damage to the property but did a very states counsel statement that the killer was not seeking loss of use of the power plant as as an intellectual constant conclusion to the entire case that couldn't be changed mr davis one of the categories of cover damages is personal and advertising injur that's the basis in either the complaint or discoveries for you to conclude that prairie seeking that kind of damage it seems very different from the property damage or los stretch it is i think i'm not going to disagree with your honor the when you're in the position we're in the race whatever issues you can possibly raise to try and drug coverage in this instance advertising injury was this the the advertising issue was multiple pieces of information from the manufacturer's web site the brochure from the manufacturers probably disseminated all this information as part of what was provided very stage together with a suggestion of what out might be appropriate and so our use of this advertising is really it is really the related to someone else's ever sizing that we pounds and they are dropped into or lifted up to a place in the are planned for insulation even if we look at this as a removal of the valves that might be defective there will be harm to these heavy valve trains and these pipes this is not some simple we can disconnect the file and replace it with something else mr different ask if let me ask a question on that on that point and i'm i'm grateful that you're making it one of the things in preparing for the case that i noticed that neither party is talking about and perhaps for good reason perhaps my focus on it is misdirected and that's the exclusions in the policy you have that there might have ok on pyrrus twelve of twenty one there's an exclusion for damage to impaired property or property not physically injured that looks like it carves out property damage that arises out of a defective product my only question is in looking at this case and the  policy but not the back half of the policy well that's the exclusion for that in my view the situation is it still does not exclude other property it does not exclude damage to property and your point is that it should be factually explored right where we can be finding on appeal what we were talking about is not the kind of hypothetical speculation that federated refers to we have not submitted anything to the diff to the district court or to the scandal that is  complaint such as it is against the insurer and support the exclusion of the evidence that we offered in our supplemental filing just i see i have two minutes and change left before my time is you've asked about the exclusion from the policy so i'll just address that st yes we did raise those in the complaint they were not the subject of a motion for summary judgment was really based upon the nose no coverage within the scope has been on the pleadings right there wasn't a summary judgment motion for judgment sorry judgment on the pleadings but it was judgment on the pleadings based upon the scope of coverage we did not go we did not raise the exclusions in that motion  because we you know you know arguably yes probably damage to your product exclusion aladdin is something that would apply here to your product and arising out of it but we that's not was not the subject of the motion for judgment on the pleadings we focused more really on the no occurrence issue here no you know no property damage for the property a lot of things got kind of haywire based upon you  yes almost can see that the district court erred in granting the motions to strike that the wrong standard issue is just that a fair reading of your response brief here you know i don't know that i would say that the wrong standard was used the court may be used language from that section seven point one which definitely applies when men are grieving so i would say that you know it just the court use the exceptional circumstances that apply to reply not to supplement and and i do yes and i do agree that the wording that wording was used but it was certainly within the court's discretion to not consider those and i would you know that on those that you know neither of the briefs that the standard which would be a change in law are facts which occurred after the filing of the brief the st brief sought to submit attorney argument and called it evidence you know it's universally known that statements of attorneys are not in fact evidence and even if that statement could be considered it was really just a bare of vermin it was not based on you know necessary personal knowledge there was no after david there was no district court here to rely on the state and of the attorney and all that particular aspect of the motion to supplement sought to do was to make sure the court saw both sides so you're absolutely right a true statement generally aren't evidence but year to just your court use that attorney's statement as evidence but opportunity to provide the full picture and i really i have to respectfully say that i don't read the words motion memorandum and the motion for judgment on the beatings to rely on the attorney's statement so that the court's opinion found that in its opinion quails argument that there is an implication here east power plant was not operating at its full to the point you made about the district court's lack of reliance upon the statement made at the hearing here when i looked at page appendix page fourteen page six of nine of the court's order it seems pretty plain at the top that the court is relying upon the statement that per account perris counsel made in not making a claim for loss of use and that that reference just necessarily has to be to the statement that miss baron made in that hearing and i think mr davis point is that if that's going to be considered for miss and as plain as day as an officer of the court represented that intersection pipes were damaged now this parent is not the plant engineer it's cetera et cetera so the evidence re point is simple that way i totally get that but i think his the point that they're making is that you can't cherry pick like this you can't you can't pick you can't use half of page twenty of the appendix on the loss of use but then erase the bottom half so how to how do you respond to that well like i said i don't believe i believe that the court mentioned that that the attorney said that but that was i don't think that we say mentioned why when you say mention are you referring to what she wrote on page six right she said that that that phrase counsel clarified that  was not making it for loss of use but then if you look at her opinion on the page before and the preface to that it is more over so more over that was just confirmation of her own understanding of what it says in the complaint suggests that more over she's relying on that that that's further support for her position here sure but there even if it is it's not reversible error because there simply are no that we're talking about miss barron said well this was quite an episode the plant caught on fire there were ten fire trucks that came out it took three hours to put the fire out there was massive damage unfortunately a few people were hurt would you still say we don't need to inquire into the facts at all well your honor those are actual she's stating actual focus on my hypothetical article focus on ip got something that you would want to investigate but in this particular instance she's just saying they're not seeking those damages she's the lawyer so i would i mean ok no no little no no that's not what happened when you look at the transcript there's a question that is put to mr barrett by the court so you are seeking money for damage to the prairie state property answer correct so my question is that maybe you want to degree compared with my hypothetical but if in my hypothetical in response to that you say well look if a lawyer said there was a fire and there were ten truck show up and it took three hours to put out be that is it may the facts here are just is that there is no occurrence alleged so even let's say for the sake of argument that there was some allegation of these gripping terror i'm going to call it type of damages if you look at the recent case of lexington insurance company versus chicago flameproof and what specialties the court refutes this seven circuit refutes that these rip and tear damages are caused by an occurrence so in this  case the the a pallet is trying to like in its own situation the situation presented in their case so in that case the customer sought repair and replacement costs including the cost of damage to surrounding materials ruling it was because your type i believe so so which comes back to how can that really factual determination of occurrence be made at a twelve c motion for judgment on the pleadings i mean well your honor i mean if you i mean they're the procedure of having judgment on the pleadings is allowed and here it's not it's that this isn't a new it's been over five years since the facts giving rise to this the underlying claims took place it's been three years since the underlying lawsuit was filed they were given the opportunity to do just country in this case there was this guy very that asked for underwriting history and you know all this crazy discovery and so the magistrate you know shut the discovery down and limited it to what was you know at issue in that was any discovery pounded because any discovery propounded to seek the factual basis for the representation that miss baron made in court well eight your honor yes because there was like exchange between the insured and the carrier before that and files were given and documents were provided so if you look at the one e mail that they attach and did you send a copy of all that over to over to cornell yeah and they attach it is one of their that was one of their supplemental things the e mail that they submit it was something that was provided by federal to acquire so the e mail that they submitted in one of their supplemental filings was something that was provided  just so why shouldn't that have been presented to the district court it seems like coyle was precluded from advancing its defense before the court by not being able to get some of this evidence before the court and maybe ultimately you would win on summary judgment but it seems like they weren't given the chance in the  st instance to present this defense i mean you know you know we don't agree i mean we believe that you know they've raised you know if you look at what they say the questions are in fact at the under their reply brief they throw out some facts and you know the facts are really immaterial to the actual claims in the perry lawsuit for eclipse we've charon replacement of defective about if you go to agreed with the things that they say or question of fact they bring up you know this advertising injury claim you know which really i mean the court accurately pointed out that there's no advertising they're just you know throwing out something maybe mr davis the telestrator wrong or maybe mr guy was told maybe mr davis will tell us were wrong i thought the whole point of the discovery was to figure out is what miss baron does what m barron represented in court to magistrate williams does i have a factual basis is it true was there properly or much to the plan well your honor that's that when they can find that out from us that's something that they're that they are developing below but that you they've had you know three years to develop that and there hasn't been any anything that's about they haven't come to us with anything i mean this case is still going on and i have a feeling that if he if mr davis tried to file the deposition of the plant manager or somebody else that that there would be a motion to strike that well they did file a deposition and we did file a motion to strike that but there was day after the facts are developed you win i mean your honor we believe that that that the court situation here is that you know a duty to defend its basic you know facts asserted in the underlying complaint the facts asserted in the underlying play doesn't that only allowed though the without under the facts here without an exploration of the factual record as to what they're actually seeking doesn't that allow the underlying action complaint to be framed in a way that could preclude the duty to defend from kicking in but then down the road still have coraline the hook for these damages that the insurance a supposed to cover of their not on the master of the complaint here if they if the oil it was the master of its complaint it would be different and i could see where you would should they should be held to or it should be held to the allegations in the complaint but they're not the master of the complaint here so prarie could plead around it well your honor that's true they're not the master of the complaint regarding if you look at the case law it's the types of causes of action of allege as opposed to the facts alleged so in other words if they called it something else but it really could be something else the case law says that that they're not the master in that regard but here there are no facts alleged to support these suppo claims they don't say that they lost power at the facility they don't say that they lost production at the facility they're not seeking those damages there are no facts to support that you have to at least have facts to support these strategies and theories that they're throwing up against the wall there just isn't anything there you know they threw an advertising injury through and leaking fluid none of that there are no facts to support any of that so at a minimum you at least have to have to support these theories of coverage not just bald you know allegations just pulled out of whole cloth and that's what really we have going on here and if you look at america sure mutual versus pleading under illinois state laws this is an illinois state complaint but even you know even any facts i mean there are no facts there's no allegation that the plane plant was shut down they were further some kind of it was brought as you know the basis in that was just to install the actual original ballots so there are there's no allegation that they lost power there's no allegation that they had any kind of disruption there's no allegation that they sought damages for that there's no allegation that anything you know was damaged by this you know the steam and we don't really even  the allegation of hazardous material but the valves aren't hazardous themselves it's not like as fast as where you are where you're introducing a hazardous material the hazardous material was the power in the steam itself and that was not something that was you know introduced into the machinery so i mean i just stare at there's nothing i mean here there the and and that's it i mean there are no allegations of other damage it there are no allegations of some unexpected or unforeseen occurrence which is what is required by illinois law to trigger coverage under a davis i thank you i don't have too much more to offer if i would i would say that our case i think is very consistent with the lexington chicago flame from space that case focuses involved repair replacement there's so much more going on here and it's just obvious it screams for even this minimalist seven page complaint and we're hamstrung because of where we sit we are subject to the or at the mercy of the complaint we've got discovery restricted yes there was some discovery and we didn't get a lot of what we were seeking and so and yes the underlying case is proceeding as ju and we are getting answers to these questions in fact there in the case used to be changing that it was more of a negligence case to provide accurate information so there's a lot that could be said but the point is at the beginning when this was decided got a right to consider matters outside the pleadings and a reasonable opportunity to respond to the situation we were facing i do think we were hampered in that and so i will stop there appreciate