court my name is johnny givens and i'm here with my this is a case about contract interpretation one bacon has admitted in his pleadings and in other cases that issue ten separate policies of insurance to mississippi valley silica company yet it can only produce a single policy and it further emits the other non policies were lost we believe this case is black letter law about the interpretation of the one found policy and the nine last policies and because the district court failed to follow the standard set forth under rule fifty six and it viewed the facts of this case in the light most favorable one became we asked this court to reverse the district court's decision to make coverage there are a few facts that are important to this case that i want to bring out and first of all during this argument for simplicity sake i'm going to refer to the insurance companies as a whole is one beacon if that's ok with your honor's as opposed to columbia casualty and so forth but starting in one nine hundred fifty eight they've admitted that they've issued comprehensive general law building policies to mississippi valley silicone and continued through the end of one nine hundred sixty seven for a total of ten separate policies mr barnett was exposed to mississippi valley silicon products from my nine hundred sixty tonight hundred seventy there about this court was to find coverage in this case the vast majority of the policies would go to satisfy the underlying judgment we know that the policies are lawless because o the single policy of this in the record in this case it was before you that was in effect from april of one thousand nine hundred sixty two to a pool of nine hundred sixty three they made another mission in this case on record page two thirty four footnotes seven that they  record cites ninety three to one zero seven is the exact same policy but it was actually reproduced on the legal side as format so the wording is easier to read and so forth so that's that's what i'm going to reference throughout this argument i also part of the record starting with item three on record page ninety three it states that the insurance afforded is only with the respect to such and so many of the following coverages as are indicated by the specific premium charge or charges and the limit of the company's liability against each such coverage briefly in this policy we have four coverage we have coverage a b c and d a and c are not a political to this case because it's for automobile law building coverage d is also not a political because it is for property damage liability except for automobile that leaves us with coverage be both parties agree that if there is coverage in this case the claims would fall under coverage b bodily injury law billet except automobile and underneath that cover of the covers that is the issue is for aggregate products and this declaration page of the policy clearly states that there is two hundred thousand dollars in liabilities coverages for aggregate products one beacon makes no more game at that aggregate products is not the coverage issue in this case there are only arguments in this court is that mississippi valley fail to pay it effective and not with one that renders it in effect it is our position that at a minimum there is an ambiguity between the declaration page found on page ninety three of the record under the products included completed operations and that's how a lot of for now i'm going to make three main points that demonstrate the declaration of this policy that is controlling is record page ninety three not one hundred is states that the company and that's the first kind of center piece at the top there says here and call the company agrees with the insured named in the declarations made apart here of what is significant about this statement is that says the named insured and the declarations that your honour's reviewed this policy on record pages nonny nonny one hundred the other declaration pages the name insurer mississippi valley so if a company appears nowhere on those pages the only page that the main insurer appears on is the first page of the policy right there where it says a name insured mississippi valley silica company eight point number a reasonable interpretation of this policy is that the declarations that are in effect for the coverage of this policy are what are stated on page ninety three that's control point number two in that regard if your honour's return with me to record page ninety these are the conditions of the policy and under six limits of liability products coverages be indeed which is exactly what we are under here today and within that within that paragraph it clearly states the liability stated in the this case the term aggregate products appears nowhere on the consolidated liability schedules there is nowhere on that page that says aggregate products therefore paragraph s only be referring to record page ninety three where it does say aggregate products and it lists a limit of liability of two hundred thousand dollars point number three on this regards as right below there is the limits of law belief or covers a day now while we don't have liability under coverage d it goes to show what declarations control when this policy there are three separate coverages discussed under paragraph seven aggregate operations aggregate protective and aggregate contractual and before each of those statements it says as stated in the decorations and again protective and aggregate products the policy clearly states neal which means zero there is no liability there and if we had had a claim under coverage day i wouldn't have an argument here before you know it but we're not under that we're not under a needle we're under two hundred thousand dollars the bottom line is that one beacon was imprecise in drafting this policy where they should have placed a neil next to aggregate products with us if it didn't have the covers they failed to do that and instead they listed the law bill and at a maximum it provides two hundred thousand dollars in coverage and this is not the only instance in this policy where one beacon was imprecise in draft you are clearly see that under advanced premiums there's coverage ok and coverage baby and down at the bottom of the list of vance premiums of six ninety one fifty eight and three forty nine going back to the first page of the policy the three forty nine out of six was not for coverage b that's on him that's not automobile it was for cover see this is just another example is where the drafter of the contract was imprecise and was not clear in what they demand and under article twenty fifty six of the louisiana civil code in case of doubt that cannot be otherwise resolved provisions in a contract must be interpreted against one beacon who pharmacist heads there is no dispute in this case that one be confined to the text of this policy they are the ones that furnished the text that says two hundred thousand dollars of coverage for aggregate products which is what our claim falls under the policy purs r we do not believe that the wheezy ana state court nor the district court even address the loss policies the louisiana law is actually clear on what i have to prove to when there is an issue of loss policies and that's laid out in the horn or the ankle insulation case that i cited in my brief your honor and that's a court of appeal the louisiana case for the four circuit and i'll lay out in a minute why th i had nothing to do with it my client had nothing to do with it and once those three requirements are met we've established a foundation for the emission of parole evidence to prove the contents and existence of an insurance policy cover and this is where the disconnect comes between our position in one beacons position they say is my duty to prove claims fall within the coverage is my position is their duty to disprove coverage and i base that on the or case and the reason i base that on the horn or case is because in that case the insurance company maryland casualty argued that the certificates of insurance who are not sufficient to prove coverage quote because they do not specify the terms conditions and limitations of the alleged coverage maryland casualty in that case argued that the actual policies were made well that argument was rejected by the court of appeals the court there found that the certificate of insurance which only prove that the policies existed and were initiated was sufficient and found at that point in the process the burden shifted to the insurance company in maryland casualty to disprove coverage or to prove a political  they produced no policy premium payments they produce no correspondence they produce nothing but sample policies in the one policy there is no other evidence as to the non most policies as to what coverage was purchased or what wasn't purchased what we do have and what they readily rely upon which is incorrect as mr fitzgerald in his affidavit states without any support quote mississippi valley has agreed here in litigation that it did not purchase products and completed operation covers for one baking as a record page one sixty nine of paragraph eight first of all that's not based on personal knowledge and information so that's an improper affidavit testimony he's making a legal conclusion and if the court actually looks at the joint stipulation of facts that was entered into in the scoreboard case which is at record page three forty five paragraph four the only thing it said was the policies of the insurance issued by insurers to m v s c contain the products exclusion there's a big difference between a mid in that you never purchased coverage and that you purchased coverage that had a an exclusion within it all policies have an exclusion but we now know that that exclusion they agreed existed doesn't you were this man to be remanded for trial now you are asking that we render judgment in your neighbor how can we do that on this summary judgment record at this point your honor in that regard i think at a minimum this court has to reverse or not has to say that i would submit based on the agreement that both parties say the collateral software doesn't apply and there is no case law that i found that supports that position would have to at least reverse the district court on that finding but i believe percent same as the declarations page ninety three that mr givens can states that instead item three states the insurance is afforded only with respect to so much and so many of the following coverage is indicated by specific premium charge and if you go to coverage b there's a premium charge of one hundred twenty seven dollars and forty two cents items for states and this was a limited by mr givens when he just  presentation and the declarations plage is or completed this isn't the whole declarations page it goes on and it is incorporating the following schedule that is in the policy we've got this era under sea automobile where that three forty nine zero six appears and council is claiming that was typed in the wrong place on the policy i mean that that's what i'm asking how is this record in shape for a summary judgment ruling on the merits it certainly isn't shaped for ruling that collateral estoppel doesn't bar the action babar now the reason that's an error and i plead the policy is clear as premium is one hundred twenty seven dollars and forty two cents when you look that in columns on the left and you can see what makes up that number one twenty seven forty two one hundred one dollars was paid for premises and operations covered and then the balance was called for contract to live bill and coverage but when you look at products include operations coverage you'll see that no premium whatsoever was paid it's blank and in fact in the this is the point where we have the endorsement was part of a summary judgment record in the endorsement from little illegible or something it was and then what happened was if you want to record a forty seven the endorsement over what happened was when that was copied it was folded over to the bottom of it and you're right it's page one hundred four and all that does is define the word operations and gives a further explanation as to operations that coverage does not apply in this case because mississippi valley the injury does not arise from any activity that mississippi valley conducted instead it arises out of the sale of the product to fall squarely into the products hazard for which they did not purchase the coverage so then why is the two hundred thousand listed on the declarations page does not mean that's just a lie i do not know we don't have the record doesn't indicate what that was it could be that was what the underwriting department would have approved had the premium been paid but in order to rule in favor of the plaintiff barnett you have to misread the policy their position suggests that insurers should be afforded for any coverage for which a limit is indicated that's not what the policy says it says insurance is afforded only with respect to such following public coverages and which a premium is indicated well but mr kirk mr mr givens answer that as i hear he isn't it just creates an ambiguity ambiguity as a result against you that is his position and i agree that's the law but i don't believe it's in big us at all your honor but says insurance is afforded for where a premium is noted and there is no premium noted for that coverage record and all the evidence just suggest that that's that's was that what the evidence shows that there was no products covers purchase for this claim the  he made a comment in mississippi valley did agree that they didn't purchase the products coverage and that is evidenced by the stipulation in the fact that if they had purchased products coverage in the skull pro case they wouldn't be arguing it was excluded there would have been an endorsement in the policy and that would have been an issue in the scarborough case so obviously mississippi valley and it's important to note that the form that was used in the other  case is not the correct form that we now know was the correct forms that were used in that case the coverage according to what the parties believe was the form provided coverage for products unless it was excluded in the court held coverage in the first instance so there is no exclusion to look to or there's nothing to take away by the exclusion because it was never purchased in the first  place the the counsel argued with god in the burden of proof and the other policies the louisiana law is clear that the burden of proving that coverage is this is on the person seeking the coverage it is only the insurance company's burden to prove that there is no coverage a louisiana law allows secondary evidence to be established for those other missing policies and the underwriters and contradicted affidavit establishes that the forms we provided the court are the forms that would have been used that during his time periods by these companies in each of those forms requires that a premium be paid in order to obtain products coverage the fact that the insurance premium is missing on those other policies it's unfortunate that they're lost but that's the plaintiff's burden to come forward to show that that purchased that mississippi valley purchase products coverage  those other policies they can't just automatically say they get it based on arthur symons testimony in the language of the policies themselves demonstrates that they must conform with evidence that mississippi valley purchase products coverage for those other years  their attempt to throw that on back in the insurance companies just not compliant with the way the law is written for products coverage  under their policies the o t defense to mississippi valley that's a very critical distinction because the duty to defend is much broader than the duty to do and then the fire in the court is only to look at the allegations of the petition read them broadly and if there's any potential possibility whatsoever there might be coverage then a duty to defend exists in this case where the plaintiffs are attempting to obtain coverage of the policies the courts to look at the facts of the case as we know then which in this case is that mr barnett was injured in mississippi valley product after the mississippi valley relinquish possession of the product that is the exact definition of a product's hazard for which mississippi valley cannot provide coverage and therefore the coverage in this case the disarm of reference in the in the briefs that the louisiana court did not have all the evidence before it aired and did not seriously consider the issue because it was not opposed that is not correct louisiana law required an obligated that state court to evaluate the same policies that are presented to you and to evaluate the law and come to its ruling we have attached everything that you have is what the state court had as well regarding that the court wasn't provided everything here is incorrect i find of interest the fact that you urge collateral estoppel in the district court you don't argue here though your honor we have never urged collateral stop on of court to get a determination of coverage in the policy we had no jurisdiction over mrs barnett who's in mississippi resident that is why we filed the declaratory judgment action in federal court and we never did argue collateral stoppel which is why we're here basically so i don't know if the court has any other questions we're likely to respond to all right so doubt we'll hear from ms manchester is that right no i was she was just here in case you had issues pertaining to mississippi law that apparently haven't come up so i do want to mention answer just oxtail question in the event the court were to reverse that this is just a summary judgment granted for the defendant there dear is no vehicle by which to render anything in favor of the plaintiff and we would need to go back to court for a trial there's other coverages she's even if the court were to lets find that there was coverage here there are many numerous other coverages you that have been raised in the complaint and there would still have to be resolved  not a non non jury proceeding i don't think i do believe would be non jury i don't think either of us have requested a jury however there's many issues that have not been briefed before this court whether these policies provide cover my place to court the only a mission the only sworn testimony that mississippi valley did not purchase products in complete operations comes from mr fitzgerald's affidavit and the only policies of insurance issued by the insurers to him b s e contain the products exclusions as a very good because where we are in this case is one beacon has admitted it issued policies that provided coverage do we know whether that's a typo or not or whether the nail should be there or not what we i don't know but what i was going to cancel points out it seems deliberate because it doesn't add up it adds up perfectly to one twenty seven forty two it does around but and where the disconnect is on that issue is when you look under coverage d when there is no law building provided for in the policy it does state neil so they stated neal under aggregate product or property damage and they stated neil for aggregate protected but for aggregate products under coverage b in which where we're under it clearly states two hundred thousand dollars that's the limit of liability and the policy premium is listed out next to it and you have to have that at a minimum your honor creates an ambiguity between page one hundred and page ninety three one says male and one says two hundred thousand dollars in under clear case law you have to construe that or you should construe that in let you know on that same issue there is only one place in this policy where a limit of liability is state and that's on the first page of the decorations and as i pointed out in my three main points that always refer to the declarations the actual contents of the policy the conditions the terms the definitions of the policies none of that appears on pages ninety nine and one hundred it appears within the body of the policy stating the conditions and those conditions always bring you back to this page ninety three honor it says nielsen indorsement right and right to be to be what i'm actually more interested in is than this is the arithmetic is or is the arithmetic the arithmetic i do not look like nothing's being paid for this item it does appear to be that way and if it was nothing being paid for that item the neil should have been transferred to the decorations page and it was not fair enough to have a policy to compare that to one of yours what is your theory for what was paid how much was this two quarters for and how much should this have been paid and two was that was that in fact paid for one i don't know how much other than i do it seems to be impossible to figure out it isn't really reverse engineer that would be something that would be within their knowledge and they did submit another sample policy that i'd like to they're relying upon for the last policy to show what the terms would have been and he says i don't for the declarations are completed on a schedule is designated g u nine zero two four a that's the same form this we've been talking about on page one hundred of the record but if you flip back through the rest of this policy what they submitted is complete the work that form does not appear and what that form would have done is it would have instructed us in what is a structured disk or a what it looks like when somebody pays the premiums for products coverage but they didn't put that form in the record so i don't know what that form looks like when somebody pays the coverage because there is no evidence there is no testimony to that effect and mr salmon's in his affidavit briefly has no makes no comments no miscible testimony as to what the terms and conditions of the nine laws policies were he cannot state what they are are their whole argument rests on the fact of mr fitzgerald's interpretation legal conclusion that mississippi valley agreed it did not purchase products coverage and that simply is not what mr p value agreed to do you agree that all of the girls have been completed what witnesses would you call i would cross examine their witnesses i would yes on anything further thank you thank you your