this is not the melrose hotel case and now rose hotel cannot reasonably be read to stand for the principle the four th rule expect because the defendants had nothing to do with the procedure of advertising that they had agreed to that they had contracted for they knew nothing about that whatsoever and the distinction with melrose hotel is fundamental and salient in melrose the court found that doc's the reasoning set forth in so i had a hard time figuring out from day one why such a big deal was being made of north because this is not  the circuit i richard arnold would that would would argue strongly that that is presidential even though you're adopting the reasoning of the district court but if the point is there's no full explanation as to our circuit considering the matter all rose pretty good reasoning what would you argue is wrong with that reasoning in this case to show that you do have a quote occurrence which means an accident in my view there was absolutely nothing wrong with judge schiller's reasoning as to the facts in that case the fundamental difference is that melrose selected all of the recipients not the only act that was carried out by a third party there was a nine discretionary ministerial act the judge in the rest specifically find that melrose knew precisely where the faxes would get it paid only for the faxes that reached their intended destination it warranted this is very important if there was a contract between mel rizzo tell its third party the provider that just sent the faxes whereby no rose pacifically warranty that it would comply with all laws including th really didn't pick out individuals and say fact him fact him that i mean what you're the defense here we're we're we're we're very involved in it right the defendants here were solicited by a third party advertising company to send these faxes and they knew nothing about the c p a or about this company's it was it that's a factual issue and i would like to reason i tried to get o that was my point but more importantly isn't the most important thing for us to be looking at is the complaint yes what's in the complaint the complaint please first of all how is this case about property within the meaning of policy that's already been found by by the melrose court and i think the reasoning applies but i'm pretty damaged property damage alleged is when there's a violation of the t c p then there is and an improper use of parties paper and toner now isn't there a clear intent by the parties here not to provide coverage for to have acted negligently the use of standard negligence language that's pled every day in tens of thousands of cases knew or should specific facts of that case that notwithstanding that language it the it could not support a negligence claim because of the activities of melrose itself under t no it was a back up or second maybe you're right and should have no you can't be right on whether if they knew of the complaints as they knew that this was being done that ain't got nothing to do with negligence that's that expressly states an intentional allegation but it's in the alternative it's a pleading in the alternative it's common pleading in the alternative now the difference here is that in particular it's that the  complaint also alleges the the presence and actions of third parties it says it twice paragraph twelve that third parties third parties and i want to point out to the court that while the brother in case was a court of com pleas case it was it correctly determined the supreme court's view of the advertising injury exception which now was upheld and the i believe the pleader the plaintiff intended to and did allege alternative theories of negligence and the only way and the only reason that the melrose were excluded the negligen was because of the unique factual scenario in that case that melrose actually did everything itself so the court was saying on these facts you aren't really alleging a negligence claim but on our facts which are the same twelve michigan at lexus nine seven three appeal denied two thousand and thirteen michigan lexus one three two five were two thousand and thirteen in that case michigan court was deciding pennsylvania l the accusations of negligence suggest that the complaint is not limited to an accusation that lake city intentionally fax the american cop or intending to cause harm rather as a trial court concluded in brethren recipients without lake city's knowledge or permission that's the exact same allegations that are in this case that's the exact same possibility that is in this case and all i'm saying is it's not reasonable pursuant to the requirement to to analyze the pleadings under federal rule of sofa seizure eighty two to two to judge the pleadings on the basis of doing justice it's not possible for the court on the allegations of our complaint to exclude the possibility of negligence as was explained as was excluded in the  it went up on appeal on a different issue it went up on appeal on the advertising injury coverage question and not the property damage coverage questions so that question did not receive poetry in pennsylvania builder that sued for failure to perform on various theories the court says poor workmanship is not cannot be consistent with a fortuitous loss you have a certain degree of control over your workman and therefore there is no occurrence that case was then a blot upon in the gamble own decision of our superior court where the insured said well we didn't end to cause damage to our natural in probable consequences of any insurance act cannot be equated with an accidental injury all that governing authority was not considered by the that they did not sue the third party i don't think it's a meaningful distinction and in fact in the rose garden the argument would be that in rather and they the third party was was part of the the problem and therefore it was the third party that may have done this that has to be sorted out whereas in melrose it was strictly on the but the one of the party that entered into the contract rather than the third party well i think in the rose there was evidence that had been presented sort of similar actually there was a sop i was trying to help with that yeah that they that they went out and hired a vendor into the same argument that we're hearing today which we hired a blast fax vendor we didn't know that they weren't going to comply with the law well judge siller dispense with that argument to say well you know ignorance of the law first of all is not an excuse it's not the basis to say that there's an accident so the presence of the vendor really doesn't matter because here in the complaint we have an allegation that the insurer conceived of the scene directed it what rights ratified the sending  that the knew or should have known why which we may well you know let's let's look at that because the should have known language is only to say that well you should have known that there was a lack of consent that's not the same as saying oh i believed i had consent and i was mistaken insured that doesn't hires a blast fax bender right and doesn't really give much thought to it one way or the other might say well i thought you guys were taking care of it which is to say that that in that vein it's not an allegation it's an allegation of an accident it's not an allegation of an accident because you hired a vendor with the object of sending faxes that are going to be printed in red and the allegation is that it went out to you twenty nine thousand different recipients so whether you realized were didn't realize  paper would result from your conduct it is the fact the expected consequence you want the recipients to read your advertisement so that is no accident there now kele says well we didn't realise that they were breaking the law on this vendor was breaking the law that doesn't supply the fortuity whether you realized you were breaking the law doesn't nee show that your conduct fortuitously resulted in the injury it's simply reflects that you didn't know about the law and that argument was the same argument that  that decision and the same holding which is that the natural improbable consequences of this conduct cannot be considered to be accidental and so there really isn't  there is no property damage unless there's a violation of the t c it is decidedly not the law that it's illegal to send advertising faxes it's only a violation and only property damage if it turns out it wasn't but i think we have to end up going to looking back at the point the judge smith made we have to look at their complaint dont we i mean you do but but but the courts the melrose court and the other courts have gone beyond that so that's why they've got beyond that to explain perhaps the reason why they viewed it in that way but you do have to look at the four corners of the complaint and if you look at the four corners of the  you only are able to get to them over those results if you exclude what the complaint itself says it says knew or should have known it says there were third parties involved and this is a matter of logic take off the should have no yes if it's known therefore it cannot be fortuitous correct just as a matter of logic correct if it's known it would be a violation the law you would you would prove your case yes so if it's if he they said new can say knew and should have known but the point being that just looking at it from a purely logical point of view that the ira and miley knew that these the faxes were going out it's that he knew he was violating the ok that's the knowledge that there brings any kind of liability that hurt you right if you knew it yes of course if i lose on an intentional claim that's fine two different two different allegations and i'm entitled to jury charges on both if you find that he no he's liable if you find that he should have known he's liable certainly you would get your charges on both negligence and an intent all i'm saying is you can mentioned and i want to just leave you with this this is not just that's patrick's distinction i'm not the only one that makes this distinction not only did the lake case the erie insurance versus lake city make that distinction the brother case make that distinction but this court this district court made that distinction as did the maryland casualty court in both cases they said there's not a third party allegation that's in this complaint here and they made that distinction because they knew that made a difference that's the only reason you distinguish it if you if you're the only reason for that for that saying thank you thank you thank you very much counsel very well presented arguments take the matter and revise with