damage is only the work product of the contractor the home is it as a whole there is not an allegation of property damage caused by parents and rd i'd like to address the district court's erroneous ruling that there was potentially a claim for covered injury action what they filed has absolutely nothing to do with that case because there's been no amended pleading in the mylo case all of the parties that were named in the mylo case that need to be here are here so why do want to address the motion later i don't believe it in any way impacts this appeal and certainly  well we have before us ok that's what we have before you one of the issues has been raised is that the court may not have jurisdiction about this case we obviously disagree and addressed it at length in our brief  sticks but but even without that what we have here is different than level or in that we have an order that not just denied the carrier's motion for the judgment on pleadings as to one of the counts in the carrier's complaint which dealt with the parents issue we have an order where the court added the extra sense which was which was not even in the proposed form of order of the defendants and that was that the carrier has a duty to defend the court decided all of those issues ignoring the arguments that we had in the subsequent counts in the complaint that dealt with things like several of our policy solutions and ineffective has issued an injunction requiring us to defend the case and this court had mentioned in the earlier argument that you don't want to deny parties meaningful appellate review here we have an order and what pelleas have suggested is that we just ignore that order ignore the verbiage that says we don't have a duty to defend and they suggest that if we ignore that we could be subject to contempt of court and i respectfully disagree that the letter is crystal clear that we have in the present tense a duty to defend the other import of that water is that it's an injunction precluding us from withdrawing from the defense like we wanted to do in this case by providing a defense file a d d j and seeking a determination that we have no obligation to continue to the  additionally if we were to violate that orderly defense excuse me on currently defending us when we filed the declaratory judgment action the carrier was defending the case didn't believe it had an obligation to do so but out of an abundance of caution defended under reservation rights and then filed the pottstown which is the same court that decided intellects the pennsylvania superior court and what those courts have done repeatedly is look at what are the allegations what are the facts and one thing all the cases oth hot the work of the happy builder and of the insured is to build the entire house as you were introduction said you said faulty workmanship it's not you know an occurrence of it's damage to the own property to the work but the conditioning and other stuff i disagree to certain extent you disagree that it's a pleated as to some of it yes when you talk about the air conditioner they're talking about a problem with the air conditioner but they're not alleging any property damage right but you're not disagreeing that windows and doors causing damage here in my low they complain about one window and when you look at the allegations which also by the way include because it's attached to the pleading the forensic report the investigative report that was done by the investigation both of the underlying complaints the attacks the expert work for that's different think of her with the consent you cannot look at the expert report because they were produced in discovery you're the expert reports are part of the pleadings and when you look at those expert reports what they find problems with are the installation of different things problems with the sash and when you look at the complaint they talk about a window in a couple places but they also talk about how it was replaced but the problem was the sash was never replaced the installation so you're complaining about that allegation are you saying there is no allegation in here that it's about the failure of the up to the window or door itself in either suit to the extent that there's a failure that it allowed water to intrude yes clearly what they're alleging a sensitive i think alleging that there was an active malfunction duty in the manner in which they constructed the home this is a standard construction defect case where they're complaining about damage to the home intellects is a products liability case that happened to be involved in the residential building implied warranty claim which isn't covered and again with the faulty materials they're not alleging that there was an active malfunction when you look at the expert reports and you look at the other places here they're complaining about the exterior of the building and the water resistant barriers and the way it was installed and the way it was designed they're not talking about an active malfunction and that the mill function you're on or something like that and happens a couple times a year in the city you have one of the high rise buildings that has windows and sometimes a certain days they pop out and they come crashing to the ground that could be an act not function and if that window were to strike a car or a bus that would be property damage to something other then the builders building the builders on work or god forbid struck a person that would be polyandry that's not what this case is about they're not talking about a window popping off of the house hitting somebody walking into the house we hitting the children were family members playing in the house we're talking about a window that fails that allows leaking and also what they describe eliteness it's ongoing it's pushed face it's been happening  but let's say so we'll hear from your post maybe they can cite a some are some pretty specific pages where they say there's a window and we put it in right in the window it was just badly made from the the interior seal of the window was bad water came in do you have a basis for resisting a duty to defend based on that yes i still think corona and the cases after it discussed the fact that if there is not damage to something other then the insureds work ok it wouldn't come down with each of those cases repeatedly none of those cases involve that none of those cases helped they don't involve that city well they don't have to address it because in each of those cases they involve damage that's what each property that's the other property argument gets you can damage only to repair will replace the work that they did we also raised it again in the in the briefing there's a reference in footnote seven again i cite the mylo brief on the motion for summary judgment there's a citation there on page eighty two to four in footnote seven citing the l b smith case and the quote that we have says pennsylvania law does or pennsylvania law does not recognize the implicit bill of the for the general liability policy to breach of contract each warranty claims the purpose intent of a general liability policy is to protect the insured from liability for accident injury to the person or property of another and again there's not a property of another this is all the insurance work and product for you to find coverage in this case you'll be overturning decades of law in pennsylvania these types of claims  level are cases that i think is the case that guides us and in that case you had an order that was nearly identical it said it said it defined and that in that case that order the responsibilities of the insurer to defend something shows that this is this is above and beyond simply a definition of what a what you're supposed to do so you don't think it declaratory remedy can ever be enforced by but contempt i mean the declaration is ordinarily how we handle think decisions of insurers decisions of property rights pillared you don't think that can ever be content i'm not aware of authority that suggests that when i don't i don't think i'm saying that declaratory leave can never be  d forced by by consent but i'm saying when you have a case that again is is almost identical to this level or case well but i mean look the th circuit initially union fire the th circuit  noted in the gone case and the unifier case that that you mentioned both of them have been ongoing duty i'm going to require men at the insurer do something right hate defense costs as they're incurred things of that nature that's not what that's not what who are the insureds under the nautilus policies did you file this motion to dismiss yes i did file based on events that happened two months ago you know we did until the eve of argument could you please explain why  candidly i didn't think of the idea until i started preparing for war a large human and it wasn't my intention to sandbag the poor or to stand back counsel it's one of those things again preparing i realized yes we have a  amended complaint that's been filed in the clear matter and the carrier had just entered issued a reservation of white's letter in that case and i thought it was right and should be brought to the attention of the court because no one else had done so the jurisprudence prior to that how insurance coverage was handled in these types of cases and then what's happened since that and i'm going to relate why that is relevant to this particular appeal so prior to the supreme court's pennsylvania's supreme court's decision  can burn or if the contractor after completing a project was sued by the property owner for negligence which included allegations of property damage to the building itself the general contractors commercial general liability policy would determine that an occurrence had been alleged because to get inside a policy you need an occurrence that's the door to open to the policy if there was negligence an allegation of property damage the door was open once the door would open the court would then compared the allegations in the complaint to the terms and conditions of the policy to determine whether coverage actually had been triggered if any of the numerous exclusion in a general liability policy such as the your work exclusion or that your product disk luzhin or the impairment of property exclusion apply to that particular allegations in the complaint so as to defeat coverage the carrier would deny coverage if the carrier determined that the factual allegations in the complaint either good or just smite come within the coverage provided by that policy coverage was triggered carrier signed defense counsel and the case would be founded under reservation of rights in which the carrier reserved any coverage defenses that it had so that was the way things used to be and then in two thousand and six the faulty workmanship and i would note that the jurisprudence in pennsylvania on faulty workmanship not being an occurrence is somewhat unique to pennsylvania there's only several jurisdictions in the country that follow it you know  misinterpreted occurred then you suggested that we look to th circuit law but it isn't our charge trying to predict what the supreme court pennsylvania would do it is your honor and i've been fighting against this this line of cases for well over what thirteen years now i'm in construction litigator i deal with coverage issues and i see this over one of the worst overturn it i don't think well you know you're on and that was just my way of expressing my frustration over the last thirteen years no i'm not suggesting that that the court can sue a sponte not follow concern her but the argument here and i think as the panel has as indicated this is not a concern or gambon situation this is an intellect situation i'm have the effect of creating somewhat confusing jurisprudence i'm going to say with regard to the coverage available to contractors and developers under a c g l policy  pennsylvania court since those decisions have grappled with applying the rationale of kerner and the holdings of both those cases and as part of this jurisprudence pennsylvania court specifically intellects recently there was a tw fourteen case has developed the concept the act of malfunction of a product which is the basis for judge cyrix decision in this appeal so i want to talk just briefly about the burner in cupboard the pennsylvania court decided supreme court decide that it needed to interpret the meaning of an accident as used in the definition of an occurrence that set forth in the c gel policy under which could burn or was insured and remember as i said at occurrence is the door to get the policy accident is part of the definition of occurrence so the work that we need to understand what an accident is it determined that the critical component of an accident is that it is unexpected and the argued rather forcefully that you haven't in fact pled the fill your of any materials windows doors ac units can you cite any specific places in the record or complaint etc where you have in fact played that or respond to his charge that the expert report taken together with the complaint is that most of this is really all of workmanship failure tween story or construction sealing of windows and doors properly because i think that is a central issue at least in my mind and i'd like to hear a specific response based in the pleadings i'm sure now i remember your entourage as were the insured so we're the ones getting sued so we complaint ok we're reliant on looking at what the complaint says and what was drafted by yes by counsel and i would add that the current complaint we're looking at least in the clear matter it's not the operative complaint because the nd many complaints fi so really what judge sirica focused on is the allegation in both complaints that refers to it in one it looking in my low which is one  now for the purposes of determining whether coverage has been triggered under the policy you look at the factual allegations there is a actually you make your i see the conclusory statement t effect that's not enough for probably not but what what specific you know put the surprising that possibility threshold bleeding is there that it was actually a photo material i think i think that's the thrust of there's an allegation in seventy five in seventy six concerning a problem with the window and that the sash needed to be replaced sashes put a part of the window in that there is an allegation that there is a problem with the window sash and that needs to be replaced look i don't disagree that it's not crystal clearly played in this case either of these complains but is judge sir a conclusion there's sufficient factual allegations in these complaints to suggest that plaintiffs are pursuing an active product malfunction theory and that this is a products based liability case and all the court has done is said based upon a duty to an ok i can see that it's not crystal clear but they do mention the sashes and things so maybe they get to water intrusion based on failure the window maybe a dozen i think your adversaries are even stronger ground talking about the the bo injury component here there's not a party here who suffered bodily injury at all there is some fear of future risks which they argue is not covered and there's you know there's there's very very big references to some child nonparty is respiratory issues is that really pled properly here well well your honor i think the folks i cure what counsel said but i think there's something else missing that's more important that's the allegation that there needs to be something other than damage to the work itself of the contractor to in order to trigger the active malfunction in theory and this this and this is important the whole idea of faulty workmanship is bad it doesn't have the degree of fortuity required to be an occurrence of what the court did an intellect relying on vernor burner when it was talking about in unexpected something unexpected in the context of an accident it said such as an active malfunction of a product so you're depending on the i'm the problem the failure of the product but you don't have a  the real point here is is that once you have an active member function that's alleged factually you then have an occurrence right because the court has already said well that has the great degree of that's unexpected you can expect a contractor if there's a problem with the window or problem with them waste or barrier that fails and causes a problem that's unexpected and once you have that unexpected you have an accident induction occurring in once you occurrence you get inside the policy and when you get inside the policy you have the exception to the your work exclusion and that you have your work exclusion says hey complete operations when you're done we're not going to provide coverage for allegations of property damage to your work if there's a problem with your work that's your problem however general contractor if that allegation of faulty workmanship relates to the faulty workmanship of your contractor of your subcontractor that creates problems in the not the sub conscious somebody else's work another subcontractors work you have coverage for that so the big distinction that council is making here in the problem with the argument is that he's saying faulty workmanship this is what we have if you have folky workmanship you have to have property damage to you can't just have property damage to the product or the work itself we're not talking about product property sorry faulty workmanship we're talking about active mel function which allows us into the policy and grants that traditional coverage that's always been there for a general contractor well if we disagree even you know didn't in footnote to that this other complaining that when the court or will you see found a duty to defend and therefore didn't consider the remaining counts one of those counts argued that there was no coverage because of the mold exclusion to the extent there is any bodily injury here and i don't think there is an allegation of the most critical element in the intellects was a plaintiff's claims were a product liability toward claims that were quote this is his will quoting intellects based on damages to person for property other than an insurance product and there really is no dispute that the case all coming out of the pennsylvania state courts the superior court is that there has to be damage to something else so st of all i don't believe this case alleged an act of malfunction and your honor asked the point to places with that i don't believe any of the p pointed to involve an act of malfunction but even if there is an active malfunction and even if this case is deemed as being governed by intellects you still need damage to something other then you can short prot the reason intellect doesn't apply is because it was an entirely different fact it was the manufacturer of a component part that then gets put into a house it could be the component parts put into a car it could've been a component part could put into a toy it just happened to be in a house could we be applying was very clear that occurrence means accident the definition of accident when defined used in a policy like this you look to the ordinary dictionary definitions and it's something that's unexpected making something using bad products making things where you didn't follow plans and specifications that's not an accident rather they have the size professor henderson's treatise of my nine hundred and seventy one or so that there are other areas of recourse for those sorts of things like a performance bot even strikes were fires that want their own cause that's the situation here somebody build something in the attempt to do it and they do what they want to do and they do a crappy job that is not what a policy does otherwise all of us will go out and purchase policies build houses ask for a couple one million dollars and then turn around and hand go to our insurance companies to fix them if you find coverage here and you don't go st you're changing decades of law on pennsylvania you're giving plaintiff's bar in out in every construction case to just include a couple words about faulty machine materials and every one of those cases then would have to be defended to the extent that this court you know by the in the state courts and also you're now requiring insurance companies to do what we have to intervene in cases a seek  covered an uncovered we possibly have to get involved in discovery because insurers have no incentive to show this is really a bodily injury case or this really isn't an act of malfunction so you're going to open up a whole can of worms here and there's no need to both the precedent of this court the pennsylvania