sharon's versus smith determines the duty to defend by looking at the allegations made in the underlying complaint and at the policy language and as we've explained the policy language here is very broad it not only covers injuries it covers damages because of bodily injury it covers damages that are claimed by any person or organization for the care loss of service or death arising from such injury so there's your you're rule that you want us to adopt actually put insurance companies on the hook for all sorts of lawsuits that are only tangentially tied to some bodily injury oh well essential it's the people that are being attacked other ones are to livered prescription drugs to the market right so that doctors can prescribe the virginia loss was you know that the district court found that there was an occurrence and the other side has not made any argument about that so we would advise that it's waived but i prepared to answer it we do have a footnote not brief the accident involves and you know there's many many allegations of negligence that we not purposefully sent to many drugs to the intentionally done so but what's important here when we're looking at the insurance policy is all the allegations of negligence there's even a count of negligence which is what i wear that paragraph i just read you came from where you charged with being negligent probably by delivering way too many drugs currently jim was appropriate given the situation was and then the state had to spend a great deal of money taking care of people in that state who became addicted including people who didn't have the money to pay for their own care so they are these people who are mistreated take care of all reason had to take care of language that says bodily injury includes damage is claimed by any person or organization for care a massive services are done arising from such injury and the state of west virginia is seeking damages for taking care various alternative grounder on their hands ground that said well i submit that i think because of would probably get us there but the language that i just quoted absolutely gets us there that's the sort of language that was missing from places like diamond state that we are certainly looking at damages claimed by any person organization for hair loss of services or death and care and death  complaint and as you know but there's any question at all about the reading the allegations or the policy of the court is supposed to favor the insured and looking at a tort or a contract cause of action usually when in the product liability context and insurance it's been borrowed to distinguish between the cases where you see g l policy would cover you for types of action vs contract types of action so if you have a product and stiff active you don't get insurance coverage for that if your product injures the property of others or the bodies of others that's exactly why you buy policies so that at the very least the insurance company will offer you a defense so we're not sure the district court didn't explain how economic los comes into play here nor did cincinnati so you know i'm hard put to see what the basis of that theory was economic loss sort of situation because there there were baby bottles that apparently had been made with some sort of dangerous chemical but the people in that case weren't claiming that anyone was hurt by that chemical or that anyone even used the baby bottles they just wanted the money back for having bought these baby bottles that should have been put on the market are cases is completely different people did use the drugs people did get hurt people did get addicted people did die and  of the tests you can use is well is the plentiful hour they going to have to prove out what are they going to have to prove what they have to prove up bodily injury and here we think it's clear that they're going to have to prove that people were injured and that they put excessive caring for these people more than they would have had to put up for the negligent conduct of parties like excuse me s another factor i think that will come for you before you go there i want to clarify make sure i'm clear on what you view as an occurrence or whether i mean you haven't argued that there was occurrence right we did argue that an underlying what was in that way and we don't argue it on appeal or are to the sole issue on appeal is whether the complaints brought by the state of what west virginia seek damages because of put but the issue here is in fact what is the what is the state seeking and as a right the record is replete with comments by the state itself not only in the complaint but in portly in the briefs that we cited to during the course of a who companies in the underlying case have alleged that very same thing they said we shouldn't be strategically they don't want to be in boone county west virginia they sought to room to remove the case to the federal district court in west virginia getting out of point as complaint sixteen wishes for bodily injury then there's a duty to defend but what we have here is the state in effect and or in a ruling from the court in that remand action saying no no no that's not what we seek in fact state there are no monetary damages sought in this action based on damages suffered by individual west virginia citizens but the policy does cover damages for care resulting from bodily injury and that your honor that goes to the insuring agreement  brought that up because that is not an extension of coverage and it's in the it's in the record pointed to the correct page at appendix one or two  by a personal organization and in this case they do you have some authority for the proposition that damages saddam west virginia is only half can be because of the bali injury of others or the care the no and that's and that's actually you're out of this not argument argument is what are they seeking and they state specifically stated in order in order to escape and in order to get back down to boone county they stated in there and there remained brief and a court there ruled specifically that this is not an action brought on behalf of damages relating to the west virginia residents because they were trying to make a numerosity mass action class action argument this is in fact only and in the state's own words seeking economic loss and economic damages suffered by the state would be covered right depending upon the nature of the complaint but that does sound like it would have let you know whether his mother spent money to care for is injury say she paid out of pocket for medical care and broader own suit to recover that money would that suit be recovered would suit be covered if she's seeking yes damages for bottles or why do you think the answer is different if the payer is west virginia instead of the mother because of what the state is actually seeking the state could have it could have asked for damages and costs relating to individual injuries to its citizens but it's specifically said he did not and it did so in order to avoid the removal and to get back down to to boone county the disc this case arises out of and as your honor requests inquired this is these this industry is heavily regulated supply of prescription drugs controlled substances that state is what has west virginia the crux of the state of west which in a lawsuit is that they claim that there are regulations in place that require the pharmaceutical companies to monitor its supply and demand and that the pharmaceutical companies should have known that they were for supply and far too many drugs to the state of west virginia and that in doing so that led to ultimate misuse by whom are they supplying the again that the pharmaceutical companies are shipping far more than they should be shipping to west virginia that they should have things in place pursuant to the to the regulations that apply to their business and that therefore they have violated the consumer protection act the controlled substances act the statutes that are that are cited in the west virginia complaint the state itself however repeatedly and numerous times stated we are not seeking damages on behalf of west virginia citizens and their injury injury but that's not what the state is actually seeking for example in the med mark case finally the baby bottle manufacturer was alleged to have made a product that contained b p a a hazardous chemical which could injure people and the claim was brought by purchasers of the of the bottle of the bottle the person seeking the the party seeking coverage in that case said well this this is a claim because of bodily injury because they're alleging that our products have caused bodily injury but in fact the court said no no that's that's tangential as you're on a remark tangential to what the claim actually is here this claim is about the economic agreed and yet it and our position is that in fact it does not under any of the numerated cause of action for example even in its nuisance medical monitoring and negligence claims the state specifically stated there aimed at holding the plant defendants accountable for causing the economic burden to the state's provision of health law enforcement judicial services and that's the specific statement from the state itself the party seeking the relief the damages or couldn't there couldn't be a better party to provide  position on what exactly the damages are that it seeks its functional equivalent of an affidavit here from the from the plaintiff seeking damages against internet is insured so that and that and that's really and going back to one of government questions to that that's the economic cost that we're talking about here the fines the penalties for violation of the statutes it's a regulated industry heavily regulated industry that's what the nature of the of the case is about and that's for example why the underline the pharmacy pharmacists and the doctors writing the prescriptions are involved this is this is designed at feel ledged violation now you're not this feeling that there were costs of medical care provided to people without insurance i think that the the issue is not what could have been sought by the state but what what is being sought by the state and to the to the extent there was any need for interpretation the state did so itself and there's a ruling the state is bound to its own representations by virtue of the ruling in on a motion to remain and specifically there are no monetary damages sought in this action based on damages suffered by individual west virginia citizens as a direct quote from the state of west virginia to the court in the underlying case or for the care  the complaint here to reach individual claims for individual donations and again that's from the district court ruling on the motion to remain and where the court agreed with the state this is not an action i'm after citizens and therefore the removal is inappropriate and the case was sent back to the state court so what they say in the complaint and i'm looking at it think is here forever when they're identifying the damages and losses six d where they actually talk about twenty percent of the patients of it through the trauma service who have an issue with narcotic usage a many of the addictive patients have no medical insurance coverage you don't think that's adequate enough i think as in as in the men mark and the moments and the chester gentian case this case is broader that may to go right to the damages right here as well i think you just need to look at paragraph fifty seven complaint where they say defendants and their agents have caused the state to for treatment of citizens who are unable to afford such services and then and when the prayer for damages they want damages and losses sustained as praxis proximate and negligence repeatedly they say look we spent money taking care of these folks maybe the complaint is not a very good one maybe it will get thrown out but at the do to defend stage we need a defense and we purchased insurance to supply us with a defense and as long as even one of the allegations could turn out to be to acquire us to pay for people getting hurt because of what we did then we have coverage and i am really at a loss to understand how the other side can say that the state isn't looking for damages because of bodily injury the looked very closely at the case they cite and the court there did find this isn't a class action the state isn't trying to get money back and give it to individuals is trying to get money back that gets spent on individuals status the real party in interest and there's no dispute there but just because it's a state and not a mother or some other caregiver we have we have cases in the environmental context where the government goes after folks for breaking pollution laws and violating regulations and as an outboard marine i say  look they can either say look you guys clean up the mouse or they can say we cleaned up the mass here's the bill either way c d o liability insurance covers it same thing in specialty coatings so we have a lot of these cases in the unifier mental arena we don't have a case that's on all fours with with this one except the two district court decisions that i suggest not be followed  really can't see how these allegations do not ask for money to take care of these people the state says she's met the new others you have to give us money because we spent all this money taking care of these people because of your negligence whether it whether that's how it even if it were a fraudulent statement illinois law says you still have a duty to defend the case even if it's will take the case under a