judgment to mid concert insurance determining in essence that there is no coverage for the claims made against the in west and over in its owner's jason poder in a civil action filed in state court in ohio there's basically t real questions that are being raised here number one do the pleadings a bodily injury as that is caused by an occurrence within the mid continent policy and if so  was that was the injury that bodily injury excluded by the liquor liability exclusion in the policy and more importantly what were these pled crackly race where they played it in the state court civil  seeking relief for the injuries of the death of kevin beebe the first claim for relief set forth claims against michael d baker the drunk driver who struck and killed kevin beebe and invent claim for relief there were several claims set forth against mr baker not only negligence but also of the wrongful death statute under ohio law that issue here but those are not at issue here all right well but basically what i'm trying to set forth  how the complaint to set up was by the parties not by individual claims and so in the first in the in the third claim we have against rain forest claim we're going to present the claim against the end is that the employees basically forced bar is set in the middle of nowhere if you ever go out there it is a very rural area it's on a it's on a highway basically fifty mile an hour one lane road no sidewalks it's two miles back to route eleven two miles to the township a band over it's a it's midnight and it's a it's a thunderstorm going on base and i sense a thunderstorm there's a storm going on basically there's no waiting whatsoever so he has nowhere to go when they and they don't just set him outside the bar they don't let him stand in the parking lot there are that those facts where did those come in because when i tried to read the underlying facts there's there's some people who are saying at some points in some things that he called for a ride that he left before the ride came but the four seen him out of the parking lot where do you get that from then it basically is coming from witnesses and here's the problem give me the witness and the document well we don't have those on the record that's the problem because what w would happen if this got to trial but that's not what we're interested in right direction we are illiterate so let's look at we're under notice notice pleading i did let me look at your notice then because here's what i see as the crux of the issue to me your paragraph seventeen says despite its knowledge that he was intoxicated and had no ride they negligently forced him to leave the bar right eighteen says they violated the dram shop back nineteen says they should have known great probability of harm yet recklessly disregard to me you're saying hope only seventeen and eighteen are independent claims as a way of getting to nineteen they say seventeen and eighteen have to be read together there are only one claim it's all a dram shop claim is that a fair way of stating the two views and that's well and i would say actually nineteen can be read independently as well because it's technically saying recklessly treating him out there so to me you can basically make a claim beyond negligence of recklessness in putting him in at all they recklessly disregarded but if it weren't negligent to start with right on you the question there's your contention now is that there's a dram shop claim and then there's an independent negligence claim yes the negligence claim as i'm saying in number seventeen indicates that deceit was intoxicated and had no ride and therefore it's negligent to eject him sekret it's not that's part of the negligence right but it's hard to see how it would have been negligent if he had not been  intoxicated i think if you're sober to have put him in the situation you're basically asking to nearly kill somebody because once again this isn't what the complaint says it says this by his knowledge that the scene was intoxicated and had no right negligently forced him to leave the right that's the allegation and even if we would read that to say you sent him out when he was drunk and he had no ride doesn't say despite the fact that he had no ride and it was an it and there was and it was two miles to the next bus stop or whatever it was negligently forced to look at the complaint right understood if you treat it as an negligence just assume for the moment because that at least can be read that treated as negligence from intoxication then i want to know what you do with the first sentence of the tramp shop act first sentence of the dram shop act says no person or administrator of a person who suffers as a result of actions of an intoxicated person has a cause of action against any liquor permit old holder who sold beer or locks or intoxicating liquor to the intoxicated person and then there's an exception that doesn't apply here why doesn't that just flatly say you lose it's a protection for liquor store liquor purveyors you know bars but right it says you are not liable for any of this stuff unless you fit within these narrow categories so the way you have this drafted is make sense is that you know he did this and therefore he's liable under the dram shop statute because people who know the statute know that otherwise you can't recover because they actually if they can if you really go through the dream shop act and i'm kind of getting on it right here about getting to getting caught in the weeds for this because now we're talking about duties that ohio court should determine now not the court here because i think we should go into country talking about whether as you say the pleadings alleged cause of action that's based on intoxication sure seems to be in your argument has been well but we're not alleging a dram shop cause of addiction we're like but but the dram shop precludes other ones that's my problem but the what the contract is saying is it is has to be based upon the service of sale of alcohol or this is a statute and based with grammar no it says it excludes the exclusion speaks of qazi or contribute to the intoxication of any person the furnishing of alcoholic beverages to a person under the legal legal drinking age or under the influence of alcohol that's well that's what it allows i'm talking about what it prohibits in the first sentence and it says no person or administrator of the person who suffers injury or death death and it's as a result of the actions of an intoxicated person doesn't say who has a cause of a action has any cause of action against any liquor permit holder who sold beer intoxicating liquor to the intoxicated person unless and th that here and generally in generally judge that means you can't recover under ordinary negligence for having sold liquor to somebody but the one who dies as a result of having that liquor of having been intoxicated seems to say but a bit but i would say that what the course of ohio and i guess i don't have a case but the courts of ohio and i think the the can is even it is said that when their motion is summary judgment below was that this is always applied to third parties who are injured by a drunk prints and auto owners still talk about an individual who you know is injured even though they may or may not be intoxicated from the bar but you know if the dea still employed he are basically putting an intoxicated person in a within the exclusion of the policy all within the exclusion of do not fall within the do not fall within the explosion within the probe correct correct is over yes and in fact i believe in the prince versus buckeye union there there was there was a clear cut dram shop claim made in that case and they actually then brought in a separate account concerning other acts of the bar in this that was the case where they gave the keys to a back to a drunk patron and let him then go off and hear the results of the actions of an intoxicated person the injury the intoxicated person is the driver  baker but the whole theory is that an intoxicated person was allowed to walk down the street and if he hadn't been intoxicated then that then it would then i not have been negligent to let him walk out of your store and here i would say that it was  basically he was forced off the property because i mean it's i understand he was forced off the property as an intoxicated person right and you're forced off the property and you're not intoxicated it's hard to see how it's negligence if you were not why if you're if you're putting if you're put in put into a certain situation allegation that he was blind oh no but they're saying that what could be right and once again this is what seemed i think i'm nervous here because once again we're going into i think when we talk about a duty again this is a duty that the state court is supposed to might we've this in at some point the the the style of the case is somebody versus coder which are the bar owners right where are they in this litigation you might think they'd be the ones that would be here demanding coverage your honor they're not so if you could just weave that in you don't have to start with that but we even in some i will because it's a very interesting aspect of the case but my name's jim oberg i represent mid continent insurance company it's our position that the u s district court properly granted summary judgment to insurance company because the claims that are being alleged in the complaint in the underlying action are clearly precluded by a valid and forcible liquor liability exclusion the facts of the case are none of the facts that have been alluded to by the appellants counsel are in the record and we would ask that this court disregard any facts that are not in the wrec the appellants hedda an ample opportunity to make a record if they chose not to do that shame on them the record in the case is the complaint which the  contract mr coder who is the a liquor permit holder and the in west end over all three are insured under the under the mid continent policy the allegations in is in it's been indicated in the pleadings is that the plaintiffs allege or the appellant's allege in paragraph sixteen of the complaint below that the defendants who were the on the bar the liquor permit holder in the land contract holder the owner of the property owned operated in possessed a liquor license for the bar known as the n paragraph seventeen they allege in the complaint claim that the intoxication occurred at the end does it or that even any liquor was served at the end of the sky well we know from the admissions that are binding on the insureds in this case that he was served in intoxicating beverages at the end and the mid continent to to flush some facts out because the the appellant chose not to did serve admissions which were answered in the infirmity of that the those are admissions not by by scardino but by the people who are supposedly you're trying to keep them from getting coverage the op right the only reason may be the better asset than whatever else they have in their actions against the bar it's a moderate but at least respect with spec to some of these admissions like the admission that the deceit did called a ride but left the property first you know i mean they're not in a position to admit that they can claim and i believe that the in certainly is in a position to admit that if that conduct is known by their employees and that is what's reported to the employer certainly they would have the the right to to make that admission there they're a party in we believe that there is in fact what occurred in terms of determining whether there was he would get these this sort of some of this argument is going to could they win could they be defeated in various win eans as opposed to do you have a duty to defend it we don't want to go there your honor because that argument doesn't have to occur the only given this case is look at the complaint let's look at what was pled ok under oath look at seventeen i mean let's that's really at least to me as i indicated the question is can they squeeze seventeen out of the exclusion ok and it says that you negligently forced to see them to leave the bar it does say that he was intoxicated so my first question is suppose they didn't pled in touch suppose it was a person who said you know i was blocking or i was deaf and they forced me to leave the bar with the liquor exclusion preclude coverage there preclude defense without the allegation of intoxication no but what we had were faced ok i understand  ok and the complaint doesn't allege that they caused the intoxication well regardless of who caused the intoxication under ohio law the  all claims against a permit holder have been merged into the into the dram shop act well but you just told me that i thought that the blot the deaf person could have a cause of action you're still against the permit holder any claim in which intoxication is involved all right so that for example man falls down a flight of stairs that is completely rickety completely falling apart ok if he's not drunk he has a cause of action for negligence if he is drunk even though the facts are anyone would fall and he doesn't have a cause of action well those are facts but you're  ride which might be working as well i don't know but that's i don't believe there is any claim and i don't believe there is any claim for negligently telling someone you're being disruptive you've got to go with that and it and that's the your argument hinges on what you just said you have to your and basically that as i understand it i want to ask you this is the is the argument in your brief which is basically there is no claim there is no law in which you can be found negligent just for having no ride and being told to leave the bar even if it's out in the wilderness kind of bar it's got to be something intoxicated in order for it to state a cause of action so that and i think that if you it if you assume that then you run up against the your opponent runs up against the language of the statue which says if it is intoxication that is necessary to your argument you just can't recover it so that then my question is assume that's correct assume that the law is and i know that there's differences and nuances and so forth the some of the law is that this has asserted a claim which has no basis in ohio law  the defense nonetheless have to defend that claim has no basis in law i mean why i can why can't why can't you say they still in all nonetheless have the requirement because it alleges because that to me right is that is that you have this you have this dram shop act preclusion but the there's argue what if there is another claim that is stated in the complaint which fails as a matter of law under ohio law does that mean it doesn't fall within the contract or does the contract still in all nonetheless require defense so that you can prove in the court that it has no basis under a while law to see that my question yes i do and it would be our position then there is a different case that's not this case we know what if it is this case  if we accept your argument that's where we arrive if we accept your argument which is i take it you know and we can argue about whether it's a good argument or not the argument seems to be that this alleges negligence because you injected an intoxicated person and it is alleged to be alleged outside of the dram shop act exception it's a ledge not to fit within the liability that's provided for in the dram shop damn it a it's a freestanding negligent claim based on negligently ejecting an intoxicated person that's what if it just said that in addition to liability end of the ohio dram shop act paragraph eighteen a we're zooming in a glitch and claim for ejecting an intoxicating person and it doesn't say anything about this statute which seems precludes such actions why why wouldn't that require defense even if one of the defenses is it statutorily precluded it wouldn't only be statutory precluded just doesn't recognize middle why can't you raise a claim that's going to lose and get and get a sense of that claim as long as it fits within the that's my question but this if a claim just loses under any fair reading of ohio law but that's ok don't they still have to defend it and go into court and prove that it loses under ohio law and they say we won't unless it's in less the first thing is we have to deal with is there an occurrence ok is there an occurrence if there is an occurrence then it is th the claim is baseless generally that's why you buy insurance is to defend against claims are baseless or not i would disagree in one respect your honor is if the if the underlying claim is clearly in  is covered by an exclusion whether it's baseless are not there's no duty to defend your greed with that but i think the question i think we got an answer which is if it's simply that the claim is baseless you might there may be there may be a duty defendant or that that situation but on the facts of this case there's no reasonable way to get there and i think the court below understood an argument you would make to the court when you go in and defend because when you said there's no cause of action for pushing somebody out of your bar you had just earlier i thought agreed with me that if he was blind or deaf he might have a cause of action but but missed this individual to it's nowhere near record did he have any type of disability  change i know but i bet your statement you made the flat statement there's no cause of there can't be a cause of action for putting somebody out of the bar and i said what about a person who is disruptive but is stone sober but i also blind or deaf you throw him out there may be a cause of action for negligence isn't there i'm not i'm not in agreement that there necessarily would be the person you know and i don't think you have any any i don't have  to enter the bar voluntarily that that's a it's not a right to stay in the bar you know they have no right if you beat it if you're going to be disruptive the tavern owner hasn't has the right to exclude that's what was done in this case  and the the issue of the prince the prince versus but a union in going back to the pleadings of we believe the court below understood that the only way to read these pleadings this is a dram shop violation because that's the only common sense reading of of that that count because without the dram shop there's nothing in the court understood that all suppose paragraph eighteen wasn't in there ok would you say that we refused to defend because it's really a dram shop act case and therefore we won't defend would that have been your position or would you just say this is a nonsense case and we won't defend it but i don't believe that you have to have to argue a violation of the dram shop for it to come into the within the purview of the liquor liability exclusion the fact that it is integral to the complaint that he was intoxicated or exclusion is anything arising from what the service of alcohol yes causing parts again they don't allege that you furnish him with any alcohol i don't i don't see in the complaint now you say that you've got admission by tomorrow indicate that they did but you  to use common sense we believe the core plough had to use common sense and did in it see that i have to read like i would just like to add one thing your honour's when the the appellate talks about the prince cases and the other cases th talk about an exception to the tramp shop there's only one exception under ohio law and that's after a terrible owner takes keys and gives keys back we rode the case for all these reasons your honor we would because it's going back to then the pen central case is you know this these are these are issues that he he wants to do the motion for summary judgment that the state court he wants to do it here yet now in the pen america case in from pennsylvania they did in the case concerning the girl that that then sued them whether or not that was a whether or not that was within the exposure outside the exclusion so the case is there basically once again these are do fall outside of this  and he says the common sense reading though is that number one they did force they objected mr falls outside that's falling outside the the exclusion action is that it's falling outside the cause of action that's provided in the dram shop act is in the statute oh i know i know i was i thought you were talking about exclusion to to the policy at that's what i've been talking about the statutory preclusion of liability right i've been talking about so preclusion of liability as broad and then as an exception right talk about things that aren't within the exception to the broad exclusion of liability seems to me that if you win here today and you go in litigate this case unless you litigate it without mentioning the fact that he was intoxicated which will make it harder for you to win on the facts it would seem you're bringing right smack into the statutory preclusion of liability but i question to your posing counsel is will so what do you still have to defend correct and that's and that's the argument that i've been making is the policy still requires them to provide a defense and the facts are coming out very different because you know as i said i came into the case late in fact we got the case basically the day after the motion his motion for summary judgment was filed to the district court and then all of a sudden we had to get this case going the facts are coming out very different from what the admissions are saying so in and that's the thing that they have refused to do for insurance purposes the facts are what's in the what's in the complaint exactly because they didn't you know we got to look at this complaint see whether race is a claim plein in the state court no no but there's discovery and there's discovery ongoing things have been stayed because the drunk driver is still going through the criminal matter there's going to the court of appeals for the motion to suppress butt so the the continuing  discovery is ongoing the case that the trial court case has been state and to go back to your issue as to why the bar owners are not here basically i've had discussed that we discussed this early on with the with the counsel for the bar owner base it's a matter of  money they don't have they did they don't want to spend the money to try to defend this action if you know that they're just it's a matter of expenses is basically what that is so it would make sense that they don't want to because you know they wan litigate it under the dram shop act on it clearly not required to do that other claim which is almost a sure loser i can't go into why should they have to go into court are you a sure loser when they have to spend a lot of money defending the dram shop statute which they're not contractually required to defend it's kind of hard to defend them in part not in the other part so this well they get dragged in by near let's say ups insubstantial well the bar owner is going to have to defend in the in the prince versus buckeye union insurance case to actually enter summary judgment on behalf of the scardino thank you thank you still the case will be submitted