church mutual has not paid appellants any amount of damages both the balance and church mutual filed summary judgment motions in the lower court appellants was denied rich mutuals was only granted in part however the trial court terminated the matter because berger if i could help perhaps to frame this at least from what i'm the most interested in let's assume that that he is a person that would otherwise be insured under this policy but let's also assume as the insurance company has argued that they are correct that the sexual abuse claims in this case are not covered by this policy and even if they were they would be void against public policy so i know you don't agree with that but i want you to assume that so you're coming back then and saying w about these no sexual abuse claims that are in the record and that will allow us then because it wasn't an open to fully recover under this policy the concern i have with that is that having read the record while there is a rough fronts to this false imprisonment in the complaint there's there's virtually no evidence that i can find in the record that refers to false imprisonment in connection with sexual abuse incidents now i know you've come back and you talk about the what is being called the pinky the hugging and the driving incident but i can't find any place in the testimony where you ever were anybody ever presented that to the jury except in the context of the sexual abuse so where would we go in the judgment page eighty six fifteen or sixteen fifteen sixteen that's where that pink incident as you referred it at camp that was presented to the jury they were aware of that incident they are aware of the question but the question is i want you to assume that they were aware of the incidences i get that but we're were they ever presented as if they were independent and separate from sexual abuse were they ever presented  separate non sexual abuse claims which is what now you're trying to hang your hook on to recover out of the policy they were presented as a whole all the evidence ok there was nothing regarding coverage there so everything as a whole so as not to confuse the jury was presented they took that evidence and they they found damages for false imprisonment and there's nothing to say that they didn't consider it separate and that is our argument now because there were no specific and ravi tori's propounded upon them  exception and the exception is what should have applied in this case which is when the church when the insurance company has a duty to defend it is then their burden to allocate and that was the case here church mutual as to the insured believe it was the duke case the ninth circuit case they specifically said that that when the plaintiffs are standing in the shoes of the insurer they have the same they're also relieved of that burden when the burden shifts because there was the duty to defend on the insurance company well so your position as other stuff that happened well i believe it was that same case if the burden shifts without regard to relative amounts so even if it's a minor amount in comparison to the whole yes the burden shifts to the insurance company the insurance company did not allocate the  damages and now we're stuck with this impossible task of trying to discern what the jury what was in the jury's mind at the time they allocated there at the time they made those damage awards and it doesn't matter about the relative amounts whether it's minor or large and tell me why it would be good law and why we should adopt in the sixth circuit this case of the ninth circuit which doesn't this seems nonsensical we're asking you to find a persuasive the world harvest church case in the tenth district of ohio they cited to that i mean this case that the plaintiff proceeds to trial knowing that there's or should have known that there's probably coverage issues and you would think that the plaintiff in the trial against the to would know that the damages really need to be apportioned and specified as to the acts so that there is coverage putting it on the the insured and the insurance council it doesn't seem seem appropriate to me we're putting it on the surance company since they remained in regular contact with mr our shires counsel they retained his counsel for him they were in the guess it is what it what does it make any sense it's the law and several courts that and again it was brought into the world harvest case in the tenth district and there's no bet there's been no supreme court case law on this issue so we're asking you to find that persuasive since it was very much on point with this case they were the ones who are the most informed regarding this insurance policy they knew what the insurance policy meant they knew the insurance coverage you issues they should have at the very least informed their insured that it was in his best interest to the damages since they were defending him that's when general in general insurance law that's when the burden shifts to in the to the insur instance it wasn't broken down befallen president was listed as one of the causes of action that they found him guilty for for sandra but i think here's what i think we're missing here i mean if you go back again to the complaint there is a count three false imprisonment it's based upon the incorporation of paragraphs one through twenty two that preceded count three all of those relate to sexual assault and sexual battery it's always in the complaint and then from what we can tell in the proofs and in the arguments to the jury the false imprisonment is tied to the sexual assault now if we find that the policy doesn't cover sexual  assault you don't you'd have to lose your only win unless i'm missing something here if this false imprisonment relating to something that's not sexual assault which is why you've now carved out the pinky hugging and driving incident so how would the jury haven had any idea that you were seeking to recover for false imprisonment not related to the sexual assault it's never discussed the fact that he was in a position of authority that would overcome how well was discussed and in each of those connection with the sexual assault in general doubt that he had that position of authority whether it was false imprisonment during the sexual assault where there was false imprisonment not and again we don't know exactly what was in their minds when they made that determination because but there's also those who are we look in the county where we look in the record for them even being presented with a theory of false imprisonment outside of the sexual assault incidences which predominated the trial where do we find that it's just in the testimony of the plaintiffs when they they were asked whether what happened that's not the claim correct in our in our closing argument there is a request for false imprisonment damages returning authority overcoming her will nothing related to sexual misconduct in the false imprisonment instruction to the jury so basically your argument is the jury should have heard that the false imprisonment instruction related to something that you didn't discuss in your closing are you not it wasn't tied together in the closing argument but the facts were presented to them and there's nothing to show that they didn't consider that a separate false imprisonment so if we look at the opening statement of the closing argument are we ever going to see the jury being advised that a claim here exists for false imprisonment outside the sexual abuse are we going to find that any were not necessarily specifically set like that no your honor but it was all that evidence was in front of them and they could have made that determination also separate from the false imprisonment as the counseling claim as well  the counseling predated from the time she was four years old an instance didn't happen till she was thirteen those are separate instances instances as well that did not include the sexual assault and that were presented to the jury as well that they were in this counseling relationship with him as a deacon who is required as a deacon to to minister to children or to the youth of the congregation she met him at four at church all their interactions together except for the babysitting was at church  and that's separate from the sexual abuse as well all right anything else i have one over the evidence about these three events none the instruction to the jury was it was an unlawful restraint on the physical liberty of another there need to be an actual or implied display of authority to overcome their free will to leave and there was that authority here with him as her pastor as as an authority figure to her but where is the physical restraint from linking pinkies comma well at the same and the same that did that restrict where she could go she tried to get away he he he held her against her will by you can't leave it was her not feeling she could leave she was in a car she was at his home she was at the church when they went to go up when they were going to pick up his computer it was her because of his authority feeling she should not leave that amount imprisonment and again we cannot discern what was in the jury's minds at the time they made the decision whether they consider this counseling and instances where they considered the false and present without the sexual saw and that is what brings us to the problem today so if somebody you know walks up and hugs you is that false imprisonment in this situation she felt she could not leave if she felt uncomfortable something was not right that would be a  it would be seen as unreasonable this man was a physician earned enough already position to her and she felt she could not run away she felt she did not say that in any of these instances in her deposition i believe she did testify to that effect jury but the jury didn't hear that the jury heard what's in the testimony and the jury did find false imprisonment whether it was based on these incidences without a sexual assault or not again we can't discern that because it's impossible to do so  because it was a complete non issue this is an issue that has been raised in connection with the coverage action there's nothing to allocate here and there are several reasons for that first i judged instruct on the falls there were there was an instruction on false the must of thought there was evidence enough to support that there was evidence to support false imprisonment it was the sexual abuse when you're dealing with sexual abuse of a child  child cannot consent and therefore there is unlawful conduct the unlawful conduct makes that false imprisonment so the false imprisonment here is exclusively sexual abuse you can't separate them out you can't say here's false imprisonment here's sexual abuse where is the injury it's the same thing and through the entire underlying lawsuit that was the case it was presented always as purely a sexual abuse lawsuit multiple causes of action salt battery false imprisonment intentional infliction of emotional distress all based on sexual abuse of a minor it can give rise to multiple different causes of action that's what we have here the world harvest case that they cite which by the way has just recently been over ruled by ideal iowa supreme court and which the whole allocation issue then or became moot there was an allocation issue in that case because the church was a party here the church was dispensed the allocation issue dealt with the church and the churches liability and the churches liability for direct liability versus vicarious liability under the court of appeals analysis the direct liability is not covered because it's not an occurrence the fi carious liability is covered because it is an occurrence and the insurer going into trial knew there was an allocation issue they were told by their defense counsel who said i'm concerned about this because we're going into trial and these are the two theories of liability and defense counsel didn't that get into coverage but the insurers sat there knowing all were going to trial something's covered something's not because the named insured for which there is coverage is going to trial and the perpetrator everyone knows there's no coverage for the sexual perpetrator here the church was dismissed early on if the church had been part of it when it went to trial there could have been an allocation issue but the church was dismissed early on and for whatever reason the plaintiffs decided to proceed with the sexual abuse lawsuit another very significant difference between this case and world is that the plaintiffs counsel were informed repeatedly there is no insurance coverage mr l share was reported unequivocally and repeatedly at the beginning of a lawsuit in the middle of a lawsuit and just before trial and after trial you have no insurance coverage there's no insurance coverage for someone who abuses sexually abuses children there's another issue here that they've skimmed over repeatedly and don't even address until their reply brief and don't address the cases we cite and that is if you look at the very first paragraph of the sexual misconduct coverage and some page thirty eight nineteen and this is in a coverage form it's a general liability coverage form it includes your bodily injury coverage or personal injury converts and sexual misconduct correct it's tailored for churches because churches we all know have been bombarded with sexual abuse lawsuits over the past several decades these lawsuits are difficult they're complicated the church wants insurance coverage so at a company like church mutual that insures churches as sexual abuse coverage it specifically and there the very first paragraph is sexual abuse coverage states specifically that for any suit that alleges sexual misconduct the only coverage available is the sexual misconduct coverage that provision is that very first paragraph right up front we we say stein versus martin which is a louisiana court of appeals decision so it's not binding here obviously but it's the only case that that addresses that specific provision and it says it's clear and unambiguous you have a sexual misconduct lawsuit no other coverage part applies the church gets coverage the perpetrator does not that's how it works they've cited a whole series of cases from other jurisdictions not one of them concerns this language they say the language is ambiguous that's the end of their ambiguity argument they haven't said in any way in which  ambiguous so going into trial with this language that the plaintiffs know about that the insured knows about and also a sexual misconduct exclusion that is quite broad the world harvest church supreme court decision from a couple weeks ago as a very similar sexual misconduct exclusion that's in the personal injury coverage it's in the bodily injury coverage it's in the counseling coverage plaintiffs kno if i have the wrong page i'm sorry i'm not you haven't from me no i don't i just have that wouldn't tell me what what what is the the inch insurance policy is a is a fairly large document there might be two in the record the language i is the same in both policies there's a general liability coverage form i'm looking for general liability you're right and the policy is organized mostly in numerical numbers so if you look at the lower left hand corner of the policy there's a form that says a two hundred or eat two hundred and that's the general liability coverage form ok and the first page of that is the bodily injury coverage in of couple pages later is the personal injury coverage and a couple pages after that is the sexual misconduct or suppose that there had been an incident where i actually said she said i want to go home said no you can't go home for a couple hours but there was no sex symbol would that have been covered because how many ways it's different and it gives a very good gruesome factual scenario that fits in with your example where there's a kidnapping a false imprisonment of beating of a woman and her children then stop and a rape and the court there i think its eleventh circuit decision says well there's bodily injury here and this all happened distinct before the sexual abuse and therefore the exclusion does not apply to that part of it it's those types of scenarios well that's not good example for for churches really but it's the scenarios where everything's coming in or mixed in there's an awful lot there but you have a sexual abuse lawsuit that is really a problematic scenario that's caused companies like church mutual to put this all encompassing language in there so that when we have a sexual misconduct lawsuit we do not want to get into parsing everything out they learn a lesson the rock the hard way first you put in a sexual misconduct exclusion that didn't quite work then you broaden it and you put in a sexual misconduct coverage and then you broaden that very broadly if you look at sexual misconduct sexual molestation definition it's a very broad coverage matter what you do it take away pick away and you're fighting the allocation issue and you're fighting all these side issues all to mentally the objective here is protect the church there aren't sure we want to protect the church  here the church was protected and got exactly what it wanted and what it needed in this situation but when you do that you narrow the coverage and limit it to only the sexual misconduct pervert when you have a suit  sexual misconduct it's different than exclusion that excludes injury arising out of sexual misconduct which is what you had in the eleventh circuit case the guy won versus gold cup very presbyterian church there's an exclusion in the sexual misconduct or in a bodily injury coverage for injury arising out of a separate bodily injury did not arise out of sexual misconduct so you run into that scenario in employment right the church is out of it so he comes to trial right and your comes defending on a reservation of rights it's not fully in the record church mutual never defended him church mutual with greed to fund his against this individual well everybody knows he doesn't have four million dollars he's brother in jail so are we come of that with this with overwhelming evidence of the sexual abuse and then who's duty is that it is for a special we're in it could in a different context but here there's the there is not and never has been any evidence of any separate false imprisonment offense the if again the offense is to say i did instruct on the instructed on how on the false imprisonment because it's one of the counts of the complaint and i supposed to instruct on stuff you have there's no evidence to support it there is evidence to support false and i thought the i thought the argument was that that the sexual of the acts of sexual abuse also constituted false imprisonment exactly just like they also constitute assault exactly so her her argument seems to  extended to it's logical it's extreme here so see if i've got this right is that she could also be claiming that the jury might have been returning a verdict for the assault arising out of the sexual abuse claims but not the sexual abuse itself would be the same argument wouldn't i suppose frankly we have sexual abuse we have an exclusion if it's  the only facts that result in i would suggest to you that your exclusion may not be quite as clear broad as you as you would hope it to be if i'm in the right one the heading of sexual misconduct or sexual molestation liability coverage and then paragraph one starts out except for that's where you want me to be right right so except for the insurance provided by sexual misconduct or sexual molestation liability coverage meaning so unless you brought that separately which apparently they didn't hear right now that that is what that's the exact coverage that you're reading from if you look right but the point you're reading on goes on to say this policy doesn't apply to nor do we have any duty to defend any claim or suit seeking damages arising out of any actual or alleged act of sexual misconduct you're  reading that to say if their sexual misconduct we don't have any duty for that or anything else that's in that particular complaint that just doesn't sound like that could be know right a little bit so that except for the first phrase it says except for the coverage provided by this particular coverage so they get the sex misconduct coverage but they don't get anything else it begins with the exception so you do not get coverage anywhere else except in the sexual misconduct and that's where you need to look for sexual misconduct coverage we don't get anything else i'm sorry it's not over his rise yet it's not a rising out of the actual or alleged act of sexual conduct that doesn't that doesn't very clearly say that you couldn't plead something else but the language says the policy does not apply to and we do not have any duty to defend any claim or suit this is a suit seeking damn you say that that the suit arose out of acts of sexual misconduct so it doesn't matter what other claims are stuck in there right it's to address this type of argument here quite frankly that given the facts and the complete absence of any evidence to the contrary the sexual conduct exclusions in ohio public policy also clearly but this provision is designed to make this whole  policy someone affiliated with the church cause injury to a minor the employee and the church were sued and the insurance company holding the posse was at risk for liability for the actions in both cases there was a duty to defend in both cases the insurance company retained counsel to defend the employee and the church pursuant to reza ration of rights let me ask you the question this way the the decision in world harvest ended up in the supreme court reversing the lower court now they don't talk about a portion but what leads you to argue that that lower court does the portion of that lower court decision on apportionment than accurately predicts where the ohio supreme court would come out on how you would like to say ohio law is here it is the most extensive case on the issue they did not touch on the issue of allegation they didn't even address in dicta and as improper so would have been dicta they didn't need to get to it wasn't covered correct and why would they talk about a portion and they did not so it's i was a shame what does that leave us with we have one ohio intermediate court decision we're not bound by that we're to look to see whether we think it accurately predicts either where the supreme court particular general verdict form come from the court drafted or did one of the party structure this to the verdict did come out in different in or over tories regarding the different claim or different individual the plaintiffs and that was proposed by the parties  either you're not asking my question or so far and i'm not following it it's one of the other you've got a piece of paper right somebody creates that who created it did the court created out of whole cloth or did the court right we got what we put forward ok that's that's my question all right thank you counsel case will be submitted