all right well call the next case of the afternoon numbers seventeen to those six four zero twenty two hundred west alabama versus western world insurance company and here from m wrongfully fiction from wrongful entry into or invasion of the right of private occupancy of the premises that a person occupies didn't really require that the complaining person occupy the premises and this little hand complaining party didn't really need to occupy the premises despite the language that it promises that a person occupies and because the district court's ruling is contrary to the plain meaning requirements of texas insurance coverage law as applied by this court in texas state courts we ask that the district court's judgment be reversed and judgment rendered in favor of westworld on its cross motion for some if if if there's anything in the record that could explain this type of a policy i would i would like to hear it i find it so strange this use of the term they were talking about  personal and advertising interest and so it must be some sort of specialized policy i think it's for her too as a general commercial line or something but still is there something in the record that educate us a little bit about that while you're out of the so c g i old commercial general liability for the couple and since then it's divided into two main parts coverage which is bodily injury and property damage liability coverage which most of us are familiar with and then coverage b which is personal  advertising and which are slightly different category of towards such as defamation or in this case room for the big entry or invasion of the right probably would occupancy of the premises that a person occupie first hand out if god created the sentence in which two component parts first wrongfully fiction from wrongful entry into the vision of the right of private occupancy of premises and two that a person that a person occupied as is modifying that type of room dwelling or premises that have a kitchen could result in liability in other words you know person doesn't occupy an absurd example a person does it does occupy a pigsty but a person can occupy room dwelling or premises premises being modified that a person occupies otherwise it would seem the policy should have been written that a person is occup well that's your position yeah i mean why suppose a person has gone out of town for a month hasn't paid his rent for six months and you are a victim while he's out of town but your honor there there has to be some sustained occupancy occupied should just continued physical presence on the print no you saying so you're saying that the policy would or would not cover the landlord who had victimhood a tenant throughout all his belongings on the street while he was out of town but it would cover in that instance yes you're wrong why because the tenant occupied or occupies the premises has continuing to cicle presence just happens to be out of town if a different example your honor would be   spec to tenant as dobro the underlying suit plaintiff was here who's allegedly deprived of their future interest to occupy that's the crucial distinction here and if i have to know who's in the process of moving hold interest plus presence on the premises who have signed the lease there's a sort of good no other stuff in there thirty not right they would be occupying in that instance when they or you picked it were invaded but that's clearly not the case here the district court correctly recognized on the record that dobro the underlying suit plaintiff the prospective tenant had never been on the premises had never occupied them and in fact the lease assignment out of which the underlying issue the rose had not even been consummated judge won't recognize that point correctly on the facts of the underlying case so although these examples are instructive what they don't illustrate is the facts of this case the undisputed  completed twenty two hundred alabama allegedly refused to sign off on the consent for the assignment of the lease from the occupying tenant in other words the tenant was already on the premises soul an assignment of that l interest to dobro the prospective tenet which was never completed as the district court correctly recognized so if the broken moved in under those circumstances without the lease assignment having been completed it would simply been a trespasser so there is a chronology element here involved to be clear but it's a very simple one only occupying tenants supposedly and i don't recall whether this is the other side analogy here or hypothetical or what but suppose they had in fact signed a lease but they hadn't started to move in and they were kicked out at the point but the policy cover them or not it would not grow over there they're not picked out at that point because they haven't occupied yet and they're not occupying that's the simple chronology element well it says the wrongful invasion of the right private occupancy that's right in the niche in the new goes on to say that a person occupies i understand that but you saying but wait a minute you saying it would not cover that's right they've signed the lease they have the right to move in but they have not moved in and you're saying the policy would not cover that that's correct your honor the policy is not about covering premises and has not occupied them has a realized right of occupancy through a completed contract then they still haven't occupied the premise of my well then you're broadening it from the cases that allow as i understood what confused me about this case was that the the cases that have held on the plaintiffs side here have justified their reading of the policy either based supposed to prevent coverage of and those two things don't make sense to me in tandem but so i d you know i'm sort of at a loss as to what occupies its meaning here well your honor the plain meaning of occupies is physical presence as merriam webster as black's law dictionary and as the american heritage dictionary all the plain meaning sources indicate as well as the kelly cop which court the significant distinction your honor is that a mere right to occupy is the first requirement and that a person actually limits you know court case somewhere and insurance companies like to do this they like to add on an add on an add on creating more confusion than they started out with your own or not if not if we look at that simple chronology element and we can also give an example in this case suppose that the occupying tenant show ready had been the plaintive in other words twenty two hundred alabama at cut a deal with two bros prospective occupying ten and said we'll just cut out she already are occupying to show that you'll pay us more rent as the occupying tenants already would file suit to quiet the least little leasehold interest against twenty two hundred alabama and that clearly would be both an invasion of the of private occupancy and over premises that the person he saw ready occupies the the lens that we have to where to look at this case is the insurance contract in texas principles of giving the policies words there plain meaning if we say as your examples of illustrated that a right to occupy is the same thing as occupies which is essentially what you're saying is a legal conclusive ma national universes crocker says we must give the policies words their plain meaning but for whom here's my here's mine a difficulty even if i were to believe that your interpretation your reading is the better one the mover forthright when the more this the other way well your honor the the key to those cases is and when you do read them closely if you have your texas insurance coverage law lenses all the conclusions in those out of state cases which are reasonable expectation cases is pretty shocking the courts just actually say yes we know that a second requirement that a person occupies calls is added but we just don't think it adds much we think we're still going to examine it under what are the things that constitute an invasion of the right of private occupancy and there are many things that constitute the invasion of the right of private occupancy the clarification in the policy that exists on this case is that the invasion happened with regard to a property that someone occupies who is the complaining party it's a relatively simple chronological possessory distinction that this policy language clearly implies there are at least three cases your honor that we've cited in our brief the only miles case is the auto owners versus robinson and they say it's very clear that now that that language is there that a person occupies no one can sue she would usually argue that a prospective occupancy which is all the dobro had here by the district courts express recognition qualifies as ensuring agreement matter for coverage under the policy and of course we've also offered the argument that dobro did not expressly a legit completed lease assignment in any event so mr nigh while it's still ringing in our ears how about responding to the lance comment made by mr holmes that you didn't even allege that you had the right to occupied such or it's true and i believe you're saying that's yes they didn't raise that in the trial court level as a way to try to to defeat summary judgment it's waived on appeal but i'm not even that concerned about the waiver point because frankly the allegation that you broke or the suggestion that you bro didn't make that allegation is just fundamentally thoughts when you look at the at the rose allegations in the undergoing lawsuit they clearly in an equal unequivocally alleged even if counsel for the insurance company doesn't like the allegation or disagrees with because of the the negotiations somehow didn't play out there their whole term you bro nevertheless alleged that west alabama least commercial space that was used as a restaurant in he's going to s that was the original tend to grow further alleged that serenity assigned duties and that west alabama as the war as the landlord formally consented to the assignment such that and this is  quote from the underlying pleadings this is do brose allegations that this court has to take is true for purposes of the owners analysis quote if you grow obtain a direct interest in the premises to prove further alleges until not they further allege that as the rightful tenant they were precluded from fully opening their new restaurant they allege that they took many steps in terms of getting liquor licenses and all these other things they claim that they were financially damaged because they couldn't fully operate their restaurant because west alabama as the landlord interfered with their right of occupancy so there's no question that when the court appl us a lot of instruction on how this rule plots in the first nearly pictures case that i cited from this court cited in the brief the standard is this if the underlying complaint pleads facts sufficient to create the potential of cover viability the insurer has a duty to defend the entire case even if the allegations are demonstrably false fraudulent or groundless and even if some of the injuries alleged are not covered with fall within some exclusion that's the standard the texas supreme court has further advised that in the third person is a nokia case the court is required to resolve all doubt regarding the duty to defend in favor of the duty your characterization of what the circumstances amounted to paragraph fifteen is the operative fact the judge jones if you look at paragraph sixteen and that's why  comment that it bleeds over to the next page and i looked at that and this is your explanation what what it says here is at this point plaintiff's referring to dobro for the rightful that's not a direct quote if that's a direct quote from that november seventh a quotation marks were left out cuz paragraph fifteen is the is the operative fact on november seven landlord through counsel communicated to agreement of the a written letter the nov seventh letter accepted all material terms of the contract blah blah but i mean you know the first thing that occurs to  that's that's one of the several causes of action they have then they argue that they are the rightful tenants of the space and that they're entitled to occupancy and that west alabama is their new landlord kept them out they've sued for breach of contract commissariat stop all negligent misrepresentation there's all types of theories here but under the eight corners rule the court has to accept what's been pleaded this fact as true even if we disagree and even if we think it's it's not tenable we accept it as true that's the corner of i would like to to shed some light on this language that in light of the questions that you all had in terms of interpret in this clause and what is that this clause exist in terms of the occupants because when you go back and look at the case the case is that even  the carrier is relying on actually deceit their argument out right in explains the background of this clause western world defined personal in advertising injury fraud as including  injury arising out of the wrongful invasion of the right of private occupancy of a premises a person occupies ok so the language of a premises that a person occupies is important and it's important because it confirms that this aspect of personal and advertising injury coverage is intended to apply to the landlord tenant situation it's not intended to apply to situations where a landlord tenant relationship was never established ok so landlord tenant situation where the complaining party against the landlord has an interest in the premises has a what that one of their chief cases power discussed describes as a possessory right to the premises so in this context if you take that language out that we've been talking about your premises that a person occupies your left with a grant of coverage that says this injury arising out of the wrongful invasion of the right of private occupancy period so what you had was situations where people were that but that would have covered your case according to you according to what you say the insurance company would have been required to defend on that basis they would have covered the case but what i'm as you as you pointed out earlier sometimes insurance companies add language to policies in reaction to what's going out there and in case law what was going on is you have a lot of plaintiffs that were suing potential landlords for fair housing and discrimination violations they were alleging look i have a federal right to private occupancy i've a right to occupancy and you've turned me down as your tent so i'm going to sue you and then the landlords or potentially on the roads in those situations we're turning that over to their insurance carriers and the carriers are looking at this and saying we've got to defend they didn't want to defend that because it's not a legitimate landlord tenant dispute there's no landlord tenant relationship yet the landlord refused to lease the the room or the house but nevertheless if you agree that the first the invasion of the right of private occupancy is enough to require defense on the part of the insurance company then that a person occupies does nothing in that ensuring agreement well they're saying that that's amended to perfectly us they're saying that's another requirement that has to be met x well it's the language has to mean something doesn't it i what the case is that i'm describing for you show that it means is that the policy is not intended to respond to situations where the landlord tenant relationship never came into about how much the north carolina case was w that's exactly what the north carolina to know that once a person knew was that was one of those fair housing act cases no your honor it was not in the north carolina case that if you are referring to are you referring to the  went to go pick up the keys so that they could move into their rental unit in the landlord said no i'm not going to give you the keys and it had some discriminatory background to that but the point of the cases they had an agreement in place there was a landlord tenant  through their agreement then the landlord tried to back out of it the the tenants never got the chance to move it so the the argument that the insurance company made is the same exact argument we're hearing today  argued the policy i'm sorry and the court concluded the policy was ambiguous the court concluded that the language that we've been talking about here today of this of a premises that a person occupies does not mean physical underlying case in briefs and summary judgment also a stout also raised the issue of ambiguity but what hobbs realty stands for is squarely addresses the argument of the insurance company does physical a do you have to physically take possession in order for this language to be satisfied in the answer is no the concept of a promise is that a person occupies means that the there's an allegation in the underlying suit that establishes the existence of a landlord tenant relationship not a prospective landlord tenant relationship that you have in situations where the landlord completely turns the person down and says no you're not going to be my tenant ok that's that's what every case before the court the power of the robinson the hobs realty every case is consistent in that regard and just to go a little further on this if the language meant only what you meant means then it would have been a better phrasing to say covered if there's an invasion of the right of private occupancy after a contract has been a nude into does not mean after there is a you know legally recognized legally enforceable agreement that the cases that they're relying on would disagree with that interpretation including powers including robinson the reason the language was not satisfied in those cases is because all that you had was a prospective ten i understand exactly what you're saying and i'm saying if the company had want to wanted to ar language that would preclude coverage in those situations of a person who just walked in the door and got rejected then it would then the last clause would have said instead of it saying that a person occupies it would have said that a person has contracted for or something like that it could have done any number of things to make that occupies does not mean the same as contracted for occupies i mean i mean not only an incomplete reading of dictionary definitions it's contrary to the very cases that they've cited from the very beginning when they wrote me the letter is denying their duty to defend we are in the policy my the some inkling of the fact because i've been looking in the record i can sort of to the proportion of the policy employed there that this has to do with the landlord tenant relationship i mean is there anything in the policy that we can hang our will  the cases that parties that side and i'm not asking about cases i'm just trying to find something in the policy you said this has to do with the landlord tenant relationship i'm just asking for some proof of that i think that i think the proof of that would be behalf of its owner landlord or less so the landlord or lesser i think puts it in that  wasn't for oh well you know that's certainly an option the court has bites me when you're when you're confronted with a situation where every single core from around the country that has looked at this very language and it's the po hobbes really every single case has rejects either either outright expressly or implicitly the notion that the language they're hung up on requires physical presence and for all of the reasons that you all have addressed now and one tenant plans to move in one hour and then the landlord says i don't want to least you don't want to locks the door there is coverage for one situation but not the other simply by virtue of the fact that the first tenant moved  we agree with the district court page two sixty five first column we agree with the district court criticism of the that a person occupies portion of the definition it does not add much clarity to the cause  then it goes on and says by limiting coverage to those instances blah blah blah the policy that a person occupies the policy seemingly excludes at least unapproved seemingly excludes an approved subway series so if the tenant is a woman and she's letting her boyfriend live there but she moves away for a period of time then if that's what this policy means then they can't evict the boy they can't have coverage when they've picked the boyfriend he doesn't have a say he's doesn't he can't allege that he has a legal right to be there that's not that's exactly the opposite of what we're dealing with in this case dobro both ledges that the that the agreement progressed to the point where they became the actual tenant and then were walked out that's exactly what this coverage stick is designed to do yes as the landlord of the land or read the policy twenty two hundred was telegram read the policy says i have coverage for landlord tenant disputes i'm being sued by dobro who says although i disagree with them they're my tenant and that i locked him out that's w this policy is designed to cover and of course only other i mean this is a very complex case to me i'm not saying i would you know where i come down at all but i do i assume that a person occupies to the ensuring agreement requirements on which the insurer bears the burden of proof cannot be mistaken or ignored as twenty two hundred alabama's argument here necessarily requires in this regard the robinson court said quote the court finds the language unambiguous it plainly states that coverage exists for the invasion of the right of private occupancy of a room dwelling or premises that a person occupies this is crucial occupies denotes present not future tense reading the entire phrase yields but one reasonable interpretation that coverage exists when someone alleges interference with present occupancy not future occupancy that's that simple chronological demarcation that i court in the opening argument so the owners versus robinson court got it exactly right as do several of the other out of state corsets cases that we've cited even more importantly recall that of course the court is supposed to apply t substantive law of the state of texas texas is very much a plain meaning state judge jones noted that there should be some effort to keep the that a person occupies clause in the agreement in terms having any meaning and if you accept twenty two hundred alabama's argument here a mere right to occupy is enough the coverage argument is therefore established that reads the second requirement completely out of the greenman by necessity it has legations at the record on appeal at four nineteen quote the lease was not consummated and there the judge was referring to the lease assignment from the occupying tenant so ready to the prospective new tenant dobro well i think it's pretty obvious that they they are from those allegations that they are claiming breach of contract whether it was an forcible contract under the statute of frauds may be a different thing but they're pretty that i was toying with  or about that so called rightful occupancy language but they clearly say in paragraph fifteen the landlord consented to all material terms well your honor the the other thing that at least means you can have a contract even if there are non material terms that aren't hashed out well if that's so your honor it doesn't get that that is as to the u c c even if that's so your honor doesn't get them over the second hurdle which is they have to be a possessory tenant not a prospective tenant have to be an occupying tenant not otherwise as far as the argument that they never even alleged in the underlying suit the right to occupancy we did raise that in the district court at the record on appeal pages three fifty five to three fifty seven what was that in your reply to their response to your motion for summary judgment i don't recall that iran or i believe it was a summary judgment order and didn't find we really don't want to port on a report but rather just read on the fundamental question of whether the right of occupancy equals occupancy itself and that's the that's the crux of twenty two albums twenty two hundred of them this case here  argument necessarily says that if we have the right as the right to occupy that is as good as occupancy itself they cannot win unless that is the argument that is accepted and because texas requires the plain meaning interpretation of insurance contracts and the plain meaning of this contract requires that the premise is in question the premise is that a person occupies it cannot either insur