to have you argue with them right well i think what they were suggesting to me is something is on the lines of they've given me a winner so i shouldn't blow it will find out i would like it was i would like to reserve too much to start with the fraud finding because it seems to me that dooms your case and i don't really even care about the other two maybe you could just jump in and talk about fraud it was exactly where i was going to start because i think that's the appropriate question because my visceral reaction in looking at the  were entered on those would frauds a problem for us and i certainly concede it's a problem for us i don't think it's dispositive though and the reason i don't think it's dispositive is the materials that were submitted in the request for judicial notice which we obviously have objected to but if they're considered they show what is referenced in one of the footnotes in berkeley's brief which is the instruction we're dealing with an employer in north west northwest was compensatory damages finding against northwest were eleven one million dollars the instruction for northwest talks not about what you know or ratify that's one basis for a finding of fraud or malice or oppression for that matter ratification by the employer but employing somebody who's not suitable that's a piece of what we're talking about here in fact that specific statement and i pulled it out because i thought it was really interesting when you have that joint position of it can be an employer that ratifies or act that's the basis for the finding of fraud analysis or oppression and the punitive damage award or you can find that the employer has hired someone who is not suitable for the position they're holding who may act inappropriately that's where we draw the distinction because i would agree with your honor because just a nd point we have a problem you've got again because i'm your last meal i understood the jury verdict to have been predicated on the jury's finding that the conduct that the employees and gauged in the posting of the false and defamatory material in the wake was itself done with fraudulent intent that they can't remember what instructions how their friend but it's because they knew that what they were putting up there was not true and that they would have done  it to try to harm well i think there's two ways we have to look at this one is what was the premise for liability against hanson and northwest in particular the premise of why bill is exactly what you said but that's not what determines insurance coverage the insurance coverage standard is different and there was testimony in the record i mean mr hanssen whether he's credible or not testified that he didn't intend to hurt that's a piece of the testimony and we cited that testimony and it is exact question the jury we don't care what the testimony was right we care what the jury found and we know what the jury found well we do know what the jury found i don't quarrel with that at all our point is very simple that there's two different standards that's why we cited dart industries in the city of tur  in that line of cases because those lines of cases recognize art i think this court's decision dart i believe is controlling here i mean it applied california law but the nevada courts will look to california an issue they haven't addressed i think darts controlling because you had the president of the company that engaged in a libelous act within the course and scope of employment that was sufficient to tag the company for liability for that liable but it didn't result in the forfeiture of coverage and it did was and we attach those because we're not trying to hide behind anything here and we think there are heinous activities that were undertaken by hanssen in northwestern then please we don't disagree with that that's what was a stab but when you look at the language of the insurance policy here and this is a critical factor when you look at the language of the insurance policy it requires a couple of things to be shown and i would submit that neither the judgment nor the verdict nor for that matter the special erotic tori's show what the insurance policy requires berkeley to show to avoid coverage and there's no reason it would burkley in the coverage clauses were not part of the proceeding below they require cost buyer at the direction of the insurance so there has to be some evidence that sure it in this case northwest directed han and direct fire bot to do this and there is nothing in the judgment that says that yes there's a fine of fraud if there's a finding of malice was a finding of oppression but those don't work they require things like a conscious disregard of known rights that's not the same thing as knowledge that you're violating somebody is right at the direction of the named insured which is northwest and so we absolutely would focus on the fact that what the policy requires is that it doesn't actually say caused by correct cause fire at the direction of the insurer aig and so i don't think there's any evidence that was a deuced below on the motion to dismiss that northwest caused this we're not arguing that hansen didn't do this or that hansen didn't act with bad motivation but we talking about an entity an l l c and there has to be some evidence proffered by the insurance company to show that northwest the into t directed hanson now i know there's a close alleges doesn't an l l c act only through and so on but so to a corporation and that's why i think dart industries is the controlling precedent here because you had the president of the company taking the inappropriate actions and dark in city of target was a city of attorney who had the authority to make the decisions about legal positions the city was advancing that was in the wrong and that didn't avoid coverage in downey venture you had people in it in an organization at the highest level and then the court talked about a partnership in a law firm and why what we're talking about is if an insurance is held responsible for the acts of another which is what's happened with with northwest here and that's why the instruction that was given to the jury about when can you find an employer liable for the acts of an employee it's not just authorization around the cation it is having someone unsuitable for the employment and i think there's one thing we can agree upon is that mr hanssen was unsuitable but there is no evidence that he acted at whatever the corporate formality is that's required of northwest now i'm not saying they couldn't try to develop that evidence i'm saying on the record on the motion to dismiss there's no evidence that northwest as an l issued that instruction and to us that's the starting point and then it also has to be with knowledge it would violate the rights of another now we can talk about what northwest knew or didn't know but having some intent some level of intent that the district court said rose to the level of knowledge that's not the standard under the insurance policy and we cited some of the other exclusions in the policy that show the differences in wording so we know that berkeley knew how to word an exclusion correctly when it wanted it to be an objective test as opposed to subjective when it i mean this is one of the few these two exclusions one of the few sets of exclusions in the policy that used the phrase at the direction of the insurer it and we think that when you look at these exclusion you have to take into account how they're worded and that's why we cited the cause of the decision because justice souter in for sized the need to have that sort of look into focus on that point so when the jury instruction is the employer had advance knowledge that the employee was unfit for the purposes of employment and employed him or her with conscious disregard of the rights or safety of others that's one of the standards that this jury was instructed upon if this is the basis for the punitive damage award and the fraud finding against northwest it does not satisfy the requirements of the insurance policy because knowledge an employee is unfit is not the same thing as a direction by northwest with knowledge that ha acts would violate mr cohen's rights and would inflict what the policy defined as a person when they advertise an injury not just annoying violations also conflict person who never ties an injury and given the testimony and that's why i'm saying they could disbelieve hanssen but there was evidence in the record that hanssen didn't have that intent and there's no evidence in the record that northwest did or didn't have the intent whatsoever or let alone the knowledge whatsoever and that's our point motion dismiss we think it's improper ok thank you very much let's hear from your opponent may please the court i'm neal selman counsel for defendant happily berkeley national insurance company mr passages argument about the phrase direction of the insured is a creative mr action play stated to this court we don't have to talk about ratification it's not that complicated northwest all the cohen entities scuse me all the cohen entities alleged and the jury found that that the insurers in this case each acted fraudulent  they found there were three findings as to each defendant including the employer and as to each of those nine counts nine times they found not alternatively that it was maybe fraud or malice or oppression they found that it was fraud malice and oppression and so all of this the discussions about whether this was done at the direction of the insured doesn't matter there's no we know that the employees did what they did in the jury found that they acted with fraud malice and oppression and we know the jury also found at the request of the cohen entities that that the insured the insured entity north west acted with fraud malice and oppression and that fits right into the two exclusions we're talking about when you get down it says if it was done with the knowledge that the act would violate the rights of another when you find when there's a finding of fraud in malice that exclusion has to apply it doesn't apply it will never apply when you get with the knowledge published with the falsity that was the whole allegation of the claim that's why punitive damages were awarded against each of the entities and why should it be otherwise nevada doesn't want the insurance policies to insulate people from their intentionally bad acts when you read this complaint it doesn't come as a surprise when you see the evidence it came in a trial it's  a surprise the jury found what they did the district court found that the exclusions applied because knowledge of a violation in the jury's findings that directions that defendants acted with fraud malice in implies implied they said the court found that the reasonable lay person would be able to find that the knowledge is violation that knowledge of a violation is implicit in the finding of fraught oppression in malice and we cited revised statute forty two point zero zero one which defines these words fraud is defined as an intentional misrepresentation deception or concealment a material fact known to a person with the intent to deprive another person of his or her rights or property or who otherwise injured so intentional misrepresentation with the intent of that or that part of your knowledge of falsity but i think the suggestion is it could also be accomplished by concealment of material fact which which doesn't involve knowing full deprive another of his or her rights i would respectfully disagree if i conceal something with an intent to harm another i think it means i know what i'm doing because i have the intent to harm somebody and then this is not an implied malice case but balance is intended you have to intend to injure a person or have despicable conduct with a conscious disregard conscious dick's disregard means knowledge of the probable harmful consequences and a willful and deliberate failure to act to avoid those consequences those just add up to then to the knowledge and the requirements of the exclusion respectfully i just think they kind of pin that issue down i mean to me that the jury verdict is a is a is a trifecta of bad conduct found by the jury all three found nine separate times covering each  act for which the damages were awarded and both exclusions don't have i think both exclusions clearly do apply but both exclusions don't have to apply only one does and i don't and i think malice fits the exclusions fraud fitzy exclusions and oppression fits the exclusions but only one of those has to fit the exclusions i mean the jury verdict is just when you see the jury circle those words nine different times we just know what the jury found and i think it's pretty clear that we can apply that to the the surance policy and come up with  reason why judge viro did what he did and ruled as he did she i'm sorry she said and so  dart industries case that mr passage cited in which the board there was no bad conduct found by the board it's more like the quote draperies cleaners case also a california case where the c e o is doing all of the bad things and  corporation but here it's really not issue because we don't need to implicate the corporate activity by ratification because the jury did it for us by direct verdict result unless the court has other questions we'll see the rest of my time ok thank you very much thank you let's put two minutes on the clock for a total case you that you know honors to me where you have ships passing in the night to some degree the present and i think it comes down to this are the standards the same i acknowledge what the jury instructions said to be hard for me to disagree with in this in the record but if you juxtapose the jury instructions with the specific wording of the two exclusions then the district court should be reversed there is nothing in there that compelled that the finding of fraud or malice or oppression against northwest be based on ratification in dart industries the important point is this the court rejected the application of the exclusion because the insurer did not prove that there was ratification or authorization berkeley has offered no evidence that northwest authorized to ratify these acts in may be able to develop that evidence but it wasn't here and couldn't be here a motion to dismiss that's why i cited the jury instruction that was page forty six of forty nine in our attachment to the response to requests for judicial notice because it clearly indicated as i said earlier that the finding supporting punitive damages for fraud malice or oppression could be based on that knowledge that the employee was unfit for the purposes of employment if that's what the jury found here for why northwest was liable for fraud oppression and malice then we're done with the case is over and they should lose now they're obviously disputing that on a partial record that they submitted but it was not a record before the district court and i would submit with instruction when you look at the set of instructions as a whole it permits that proof which the instruction you're focused on again is some page forty six dollars of forty nine dollars of our supplemental submission in response to the request for judicial notice winds twenty one st at line twenty one on that page and it sets forth i'm just i want to be able to get this it's where it's in your response in our response to the judicial notice where they had attached some of the jury instructions we catch the rest of the ones on negligence for example and the ones in particular on how you find a corporate entity liable at the bottom of page forty six of forty nine dollars is the full instruction that i just referenced the alternative basis follows from forty six dollars to forty seven  or authorization so we're saying this jury could have found fraud or pressure malice based on the st element that element as a matter of law does not satisfy the policy requirements and the exclusions so that's our point ok thank you very much appreciate the helpful arguments today the kids just are you just a minute and we are in recess for the day