try to find a theme for every case that i'm involved with to the extent that i'm involved with litigation these days in this team is that i found is in a perfect world because in perfect world we'd all be dealing with perfect information we all make appropriate decisions and our taste would be  kurian and there would be no accidents and in this case there was an accident in this case anthony cohn my client was employed as a tree cutter to trim trees on michael noodle mints property because michael niemann was concerned about a drought in california and twenty fourteen possibility of fire and his property in about a county were wrong trees were cut world would have been a more perfect place for your client if you'd found the carcase actually your honor the carcase i think supports our position yeah yes it supports our position as does again supports our position because it's the as the carcase points out and as the davis case points out the critical element in the functionality of the applicability of that particular exclusion from liability which deals with bailment sommelier i by my dad we don't have a contract of bailment here nor do we have a contract dealing with personal property which is the subject of bailment as a core probably knows when to go down to what the issue is the issue is not necessarily coverage the issue is a duty to defend yes your honor which is that is a broader inquiry and a broader duty on the part of the insurance company then determining the merits of what with this coverage i agree completely on and that is that has been our position all along has that it's the duty to defend which was breached by the insurance company we have had no judgement of liability in the underlying case we have only had a case brought against my client for the mistaken destruction of trees which were mis identified that i believe sets the issue that is before this court i don't think that this particular  exclusion is a political at all the operant instant moment that caused a liability at all it was a selection of the trees in this case the selection of trees did not occur through my land no nothing at all no one has made that assertion in this case my client essentially is the hands and arms of somebody else who made a mistake and the instrument y unless a court has any further questions i'll simply reserve my time before you sit down i just wanted to ask as i understand it he was doing business as a sole proprietorship actually halfway through he sold his business to a corporation which is crown tree services they were both served they were both ok but what's i guess this is a basic question of what kind of an insurance policy was it with an individual insurance policy for comprehensive it was an individual policy  his it is his occupation tree trimming was listed on the policy as as his occupation less or some more questions all sit down and reserve my time that's why thank you r and explain why that case doesn't apply to the facts of this case and there's two reasons one in that case the court assumed because the insurance company never raised the issue that the loss didn't fall within the scope of the insuring agreement that it was only dealing with an exclusion this is a g l policy it's issued to mr cohn in his capacity as a tree trimmer it covers property damage caused by an occurrence and occurrence under california supreme court authority until gado is an accident and in a long line of cases when insurers conduct is deliberate there is no accident explained to the  difference between coming down the wrong tree and sending the wrong water well i don't think they're there for the in the first part when we incorporate touches on th insurance conduct and we're in the way it's critical in this case is that mr khan admitted both to attain any minute in admitting his declaration in support of summary judgment that he intended to go on the property and he had intended to cut down the trees and the owner of the cow intended to see the bill or whatever was to slaughter correction on about it in carp the court wasn't asked to determine whether there was an occurrence the o policy it's a general liability policy it's not in errors in emissions policy it's not a professional liability so you're get into show harm coverage would apply would be in the process of trimming  tree dropped or on the neighbors that would be an instance or for example if he has the saw or wires and someone's walking through the forest and they trip over his misplaced misplaced saw it covers premise liability out where his operations his office it covers things like libel and slander if it is not in errors in a mission policy and california law is clear that insurer has no reasonable expectation that a commercial liability policy is going to cover errors he makes in the performances of the services he provides was overruled kircus never been overruled but nor has it ever been cited for the proposition that when the insured acts deliberately and the conduct are right the damages arise out of a deliberate conduct that is an accident nor has it ever been cited for the proposition that the anything to do with this case because it doesn't address whether deliberate conduct is an accident and it doesn't address any of the exclusions we relied on and the discussion has a relevant i thought the position  your position in this litigation was that an intentional act could never be an accident is that correct that's the position in this instance is that the insurance deliberate conduct using your coins position under california insurance law an intentional act you can never be an accident that's correct ka intentional act and carp was decided fifty one years before delgado how how can that be if the facts of the car involved the decision to send a cow to water i mean by there's no way to characterize that as anything other than intentional and that's why i think if the car court had addressed that we might have a different decision but when you look at there's like a tube i think it's a one paragraph discussion in cart and what it says is if we look at it if we view the insured subjective intent this way we can now that it's an accident if we view the insurance subjective intent another way it's deliberate conduct it's intentional and the problem with this harness that are not a distinction though between conduct that is done knowingly but in in this case the actual ownership of the known that the trees belong to the trust he would not have cut them down without making sure that employer had obtained permission from the adjoining landowner to do so isn't how but then your honor how is that different from the results in borgen yawn where the insured had a mistaken belief that he had the right to build his house over a property line and he did so there is and will question that there cannot under any circumstances because every day and you're faced with these opposing case defining what can constitute an accident seems to me the same that the loss falls within coverage then the professional services exclusion removes all potential for coverage and that exclusion has also been upheld by the courts and there is no doubt that this was a service that it was a skilled service that he was required to have a license and that his the land owner told him which trees he wanted it so that in essence it wasn't home who selected the trees it was a landowner who said you know  i think that mr newman gave him the wrong information is an antecedent acted occurs before his intentional conduct it can be considered in the chain of causation as to whether or not his conduct w trespass to land committed negligently under california law standing timber is by definition a fixture it is part of the real estate you can negligently but intentionally cut the tree have nothing further to add