and the question is did the facts know intrastate farm at the time it denied the defense leave open a potential for coverage the policy coverage bodily injury caused by accident ege that the four boys conspired to throw concrete into the traffic and what they did pursuant to that conspiracy throw concrete into the traffic state farm also knew that one of the boys contend that there was an accident he did not tell his mother that the boys were playing catch and something wicked shaved off a wall and accidently struck the vehicle he did not say that he told his mother characterizes the mental state of the defendants the facts alleged were conspiracy to throw concrete and the throwing of concrete into traffic moreover the other facts acquired by state farm conclusively established that there was nothing reckless about it no facts provided to state farm and suggested that this was other than a deliberate act by one of the boys one or more of the boys now did not know and i think today to this day we do not know which of the four boys threw the piece that hit mr gresham wall but that does not matter for coverage purposes the policy was the fact but it's possible that this boy lied to his mother boys or not to do their job and he didn't merely try to talk the other boys out of it although i might have done that he also to kind of go along with them through something  on of the freeway hoping not to hit a car but wanting to bleed all over a boy along with the other boys and it accidentally hit him and that's possible your honor under the california cases that would not be an accident within the coverage of the policy if the boy deliberately throws the concrete into the traffic but harbors a secret hope that nothing will be hit and no one will be hurt that is not an accident your honor but if you deliberately throws say he was telling the truth but it just wasn't the whole truth because mom had asked all the right questions yes i tried to talk him out of that's true but then what happened after that well he didn't say that your honor we have not just his conversation with his mother we have we have a and if it's if it is not beyond the realm i'm not sure i'm getting the phrasing properly from california answers but it may turn out that this complaint or this case would evolve into something that's an accident even though not originally couched as an action i think there's a a potential amendment based on the facts available it cannot be a theoretical amendment based on other facts that may emerge in the future the debate is then turned on potential for coverage  before you can say we want to found you need to do any the insurance companies to investigate to uncover the facts sufficient to enable it to determine whether there's a potential for coverage you need to talk to the boy for example  being in the construction site for a period of time and smoking cigarettes all of the teenagers started throwing concrete into traffic exits the record page one eighteen as the plaintiff s here is the plan a separate statement in opposition to state farm's motion one or more of the teenagers through debris including concrete and one of the pieces struck mr rushton wall gary and joshua through debris onto the freeway mr bruce through concrete at passing cars excerpts of record page two hundred sixteen plainest also told the state court the four boys entered into a criminal conspiracy to enter the construction maybe they should have been more circumspect maybe they shouldn't have said that because they didn't really know whether fifteen cars were hits or whether mr bruce that intended to mess up some cars but the fact is that's what they told the court now the  correct judicial stoppel applies because they lead the state court to believe that mr bruce did this deliberately that fifteen cars were hit they left the state court to believe that the was an accident mr bruce and did not throw anything he was surprised by what happened now whether they were mistaken whether they should have investigated more fully before they need these representations in the state court that doesn't matter the fa correct he was you know he hadn't seen these people in a while and went along with them and i mean you know but he said he went along with them and was trying to talk them out of it you know that's the story that i heard from him there were charges but he was with them about the time but i don't know you know that he was with them when this event went down with all due respect that means nothing new as new chief is not being particularly forthcoming she's being confusing don't know what didn't know anything what about your argument the state court there aren't these acts for intentional and i haven't had an opportunity to read the entire your case where you had an opportunity to read the conspiracy there's also a concert of action claim where a group that was just in the stream of what was going on and just was doing what he should have been doing there is nothing in the judgement itself to indicate that there's an intentional act and there's no punitive damage please tell me how i should interpret that the supreme court was talking about a case in which the insurance company had defended so thinking it was strictly in that paradigm again i think what's really important also your honor if there was no you know coverage that there would be no damages whatsoever and deny and state farm brought its own motion intentional act insurance co section five thirty three all sorts of things all of which defend the damages would be defense costs i mentioned hogan in my opening it was not in our brief but i have the cite for you it's three count thirty five fifty three ninety one cal reporter one fifty this would have to show the company should have settled that case the company has no duty to settle a case settle a claim not actually covered in other words if this was not an accident based on everything we now know if it was not an accident the company was correct in not settling it because they had no duty to cover