ruled as a matter of law the continental casually has no obligation to slip in and breton under its policy specifically ruling it has no duty to defend its comments this action because contrary to the instructions nothing that i know of with regard to the unnamed parties we all i'm sorry i misunderstood what they did is i mean they had told the insurance agent that slaton in britain was to be the named insured and so the information that was directly the directions slaton to the wells fargo's insurance agency which in turn then was to make sure the continental cash he wrote wrote the policy was let in britain and the named insured what happened in this litigation because we brought the lawsuit asserting that the policy needed to be reformed that there was a breach of contract to get slaton in britain as the named insured continental casualties policy on the rule twelve b six motion was it didn't matter they said it didn't matter because they owed no duty to slip in in britain regardless because as i understand it in the underlying complaint which is  paragraph fourteen at eight thirty two the only allegation in the complaint and since let in and breton it states on information and belief dr breton was acting on behalf of and with knowledge and consent of the other defendants and for their benefit and the other defendants who are listed in the underlying complaint or other dental practices for which dr breton was affiliated including slaton in britain where dr breton was an employee so paragraph fourteen in the statement of the facts of the complaint that's it on information and belief is to slip in and breton under the facts it was reasonable for slatin and britain to assume based on the information and believe fact is ation and its purchase of personal injury coverage which specifically defined as a covered fans written publication of material that slanderous or disparages another services that there would be coverage and minimum a duty to defend under these circumstances now why it's important it's latin and britain is a name to ensure it is because of the policies definition of you you is the named insured so slotman breton asserted they were the you they were the named district court resolve the reformation court no just passed right over it and said basically didn't matter based on continental casualties argument saying well you know you wouldn't get a defense  indemnify anyhow so you know we're not even going to address that issue but i think it is important because if you look at the policy you have you is the named insured and then you have a separate you which is fo employees but while acting within their scope of their duties as such now the problem with the way this coverage is written and which one court referred to was studied ambiguity is the policy states the injury which are the tort often says including intentional torts and then says one must be caused by an occurrence and occurrence is to find is an accident which results in the injury which is the intentional often sort of the slander etc which is not expected or intended by you so as an accident and produce an intentional tor it doesn't you know and that's why i mean this court it was  address this albeit under iowa law just last year in the case of chicago insurance company versus city and council of council bluffs fire meaning that you know it's ambiguous because you have on the one hand you read the often says which are intentional torts and then you only see covers intentional misconduct if that's what it says but then it defines an occurrence saying but only fit caused by an occurrence and occurrence is defined as an accident which results in the covered torch so let's say so it says let's take assault so what it's saying is we cover though with that in the end there it's where the problem is i mean the policy doesn't say negligence i mean and negligent defamation isn't negligence in the way that you usually understand it because under minnesota law when we're talking negligent defamation all we're talking about is that the publication or statement was made where you knew or in the exercise a reasonable care or should have known it was false that's what is negligent defamation the difference from negligent defamation to the standard of actual malice is you publish it knowing it was false or it's serious doubts about it employee it was alleged that he had made these statements he had made them with malice that he had made them intentionally with intent to harm when asked to slip in and britain which is the one paragraph of the complaint all it says is that on information and belief that dr britton was somehow acting with the knowledge and consent and our assertion is here i mean how is that in and of itself announced to walk out of any obligation to defend and when all you have is an information and belief allegation the agents of the company is an employee but he's also it's also alleged in their complaint that he is connected with a lot of different organizations so all those different organizations are terms of negligence in terms of publication in the problem that there is in this area of the law is the fact that even if you  way they did it's really maybe only relevant for a public figure dr wolfe who's the plaintiffs is a private figure and he can proceed for negligen defamation without even amending the complaint because intent is not part of the underlying tort so that's why it's so difficult in these defamation cases because this idea of intent is not part of the tort when you have a private figure at all and so you can simply just you know when you when you go to trial you can just simply ignore the intentional allegation and what would be the basis in the policy for a reasonable belief that the policy covered and intentional defamation they reasonable belief is by the very nature of the fences that are listed i mean the often since that are listed are so battery just a series of intentional torts and it is exam which have negligent counterpart no they don't and i don't know of a negligent negligent counterpart to assault i don't know of a negligent counterpart to malicious prosecution and it was exactly that concern because you're really visceral raiding and making these distinctions which a reasonable per and reading this is not understanding because you read the list of often says and you go ok i mean common understanding of what assault battery  it is the insurance company doesn't define those off and says i mean it just list them so a reasonable person reading those would understand that indeed it does have coverage under these circumstances she cited to other cases around the country turning this policy was a unique i have presented a host of cases which probably unique about this policy is i think it's worse than most and i tried to i put it in that specific language where you define the injury is defined as the often ends and then you use that in the occurrence i could find no other cases like that but where you do find around the country is exactly this problem and it's been going on for decades when that's why i say the  courts some courts have said it's studying ambiguity because the court the insurance company can slide back and forth without really you know expressing where is the law and now a lot more a lot of personal injury coverage is written now with this occurrence definition tacked on occurrence works with bodily injury or property damage it really doesn't work when you're defining the injury as the are fence and a lot of personal injury policies will have specifically exclusions which go to the tort so they will have a specific exclusion then if it's done with knowledge of the falsity so you can read it and you can understand what you are getting so if it's this i don't have coverage if it's this i do but this policy it's very difficult know in waltz or certainly what the minnesota supreme court said is that you can in and the act without intending the harm but what the supreme court in their case also recognizes that an accident is an unexpected happening unexpected consequences in a van and and the problem that i have here is they want to say well negligent defamation would work to provide coverage but when i look at the definition of negligent definite defamation it's the publication of  where you knew or in the exercise a reasonable care you should have known the statement was false and i'm i don't see how that fits within the accident definition even as articulated by the minnesota supreme court when you read the definition of occurrence in part b it says was not expected nor intended by you what is it that you understand to be not expected or intended by you when you read i don't understand that you don't as it's written and says what's not expected or intended is the off fence the tort so that's the problem so if you are that doesn't refer back to a the injury or damage but injury is the chance so that's the problem the injury the definition of the question is of the harm or the often it's i read it as the oftens because injury is defined as the our offense and that's the problem so i ask that this court reversed the district court's ruling dismissing this case on a rule twelve b six by which he denied that the that the apple use had any in looking at whether or not there's coverage for this particular case the court focuses on the appropriate language on the minnesota law and while we could go down these paths and talk about coverage for some of these other listed events or offenses the focus is really on whether or not in this case there would be coverage for the  was what kind of defamation this is policy covered well for example this policy would cover for example had dr britton seen a patient one day and the patient said you know i heard that the doctor wolf just got back from south africa and dr breton decided to go online and post a review and said i heard the doctor wolf we've gone to to africa and i wonder if he was exposed to a bolo i think everyone should take precautions now he failed to check anything out there he simply put this statement out and and and he did it in the so in his mind to protect the public health dr wolfe always patients cancel he brings a claim arguably that would be the type of claim and the type of defamation claim that would be covered under this policy why would your policy exclusion that excludes damages from what a reasonable person could have foreseen wouldn't a reasonable person be able to forsee that speeding something like that in the current environment would be defamatory they may or may not i mean he may you know that would that would give us into that that more gray area but in this particular case he went on line would you you would be your company's position that if a reasonable person could for see that speeding that a competitor has been in the south africa or some portion of africa argument a defense to coverage of the case but it would be a closer question than the case that we have here you know here we had someone go online posed as a fictitious person make up all of this about having gone to dr wolf dr wolf messed up my my son's teeth things like that so that in this case there is as as a district court found this was all done with obvious exclusions in the in the policy and the and the obvious definition of occurrence that there's no coverage for this particular client so the appellate would like us to go down this road to looking at other parts of the policy that are not relevant and that's where they're they're getting into their arguments about ambiguity in a loser a coverage oh i'd like to respond to a couple of things that were brought up with respect complaint could be arguably construed sume edging negligence wouldn't you have a responsibility to at least put up a defense you know you know i think we would i would agree but you know that's not this case i recorded focused on the on the photos and whether they've been doctored and ancestor sitting in iraq authorities in the case had shown that that was induct done with an intent to deceive that was the basis for their argument but in that case surely the doctoring of the photos that was intentional that was done with an intent to harm but later on in that complaint there was an allegation that the testing that was done was knocked on properly well you could've done that testing willfully done it incorrectly you know intentionally with intent to cope with and harm you know the other side or it could have been negligent and when you look at the complaint in this with respect to the argument about the definition of injury in this case all the policy does define injury as including bodily injury and damage  that that's found in the color policy conditions so i just wanted to point that out to the court so our basic argument it's quite it's quite simple is that in this case dr britton went online posted these statements with the intent to i don't think it's in this particular case the court needs to go and look at it other provisions in the policy in order to make a decision on the case on the case and front of this court but frankly  when you interpret a policy as a whole what that what that means is you're you're looking at the allegations of the complaint and you're looking at the policy for the relevant provisions that apply to that case you don't look through the policy to see if the crime coverage in the policy is somehow him big was in order to say well the policies ambiguous and there's coverage for th policy that have nothing to do with the issue in front of this court  there there is not a lot of case law addressing this particular the way this is for this this policy is foreign editor set up however i mean there's nothing no court has ever found that  you know so there's not a lot of direct case law it's more oik you have to look at the case law how is the court apply these principles to this particular type of case law with respect to the reasonable expectations argument no one should i think would reasonably expect that they could go online and post false statements about another person or another business and then and want and do it with an intent to injure them and and expect to have coverage that just simply wouldn't be reasonable a reasonable reading of the of the coverage planned and i think it's clear from the policy that we don't cover that kind of conduct in order for the current that it is our reading of the policy is that the occurrence has to be unexpected and intended and it would be analogies to the idea that oh say i was driving down the road and i intended to turn left and i hit a pedestrian crossing the road while i intended to turn off the a person's is the fact that i hit the  with respect to this claim dr britton created this whole force per persona he posted on the internet and he intended to injure the underlying point was there was nothing there was no allegation there's no allegation the complaint that he posted these these things under an under mistaken belief was truth or falsity there is no allegation that there was any kind of unintended consequence as a result of his posting these these statements doctor wolf's wife did not leave him or anything like that there were no other consequences would be you would expect when you when you put th kind of thing online that it would call into question dr wolf's abilities and if you had a small child you would you might not want to take the child to that particular dentist  oh as far as a loser of coverage argument our position is that that is so thin in this case because as i gave the example earlier with respect to a bowl of that oh there are any number of circumstances that could could give rise to potential coverage of the policy so it's your position that intentional acts are covered but acts done with in tent to injure are not is that your position or not it's it's an intentional injuries on the poles and that's an important distinction to make x or covers as long as they do not have intentional acts exclusion so when it says was not expected nor intended by you is that a reference to accident or to the harm caused that is in reference to  because it would be ok said you when you intended to act you know for example you intended to to post the statement however you did not intend to harm  and i will admit it's a little bit harder analytically when you're talking about defamation than it is from bodily injury or or property damage  an assault i think it would be the same sort of analysis is that when you look at the complaint if there was any kind of inf or if there was if it was within the scope of what's argued in the complaint that this conduct the the actual hitting of someone or something was did not intend to injure then  there would be to potential coverage and you would probably have to defend someone it's similar to the waltzer case a little bit where you know the kids were playing they were posing that the other student you know that there could have been a claim in that case that it was a battery that these kids intentionally pulled on on this guy and try and were intending to to injure him so there is potentially there would be unintended harms involved or that the the battery itself was was not intended it would depend on how the complaint was was alleged and you know a lot of those types of cases you would see both intentional conduct alleged and negligent conduct judged on so in conclusion we are asking this as the district court found under the facts of this case amendments to the complaint minnesota courts have not addressed this situation a multitude of courts have and i direct the court's attention to my initial brief pitches twenty five through thirty six a host of jurisdictions which have found the ambiguity specifically direct the court to the rhode island supreme court decision and there's a case on indiana addressing the problem with this intend to act first as intent to harm and the courts have there recognize that when you're talking these list of often says a reasonable insurer just isn't going to see the distinction and found that there was an ambiguity the other case a direct the court's attention is to the ram mutual insurance versus myer it's one of them in a sort of court of appeals and it's page thirty eight of the brief recognizing that under minnesota law that intent to injure is not a part of the defamation claim so you can have the situation where you can say whatever in the complaint but it's really irrelevant ultimately to the resolution of the defamation claim you agree that the underlying claim has been resolved in there won't be any amendments to the underlying claim has been resolved so basically where we are what we're looking at is a recovery for the duty to defend the denial of that and with regard to