may please the court i'm thomas martin and i'm arguing today on behalf of the appellant's in these consolidated appeals and i would request the opportunity to reserve three minutes of my time for rebuttal and if we can help us out with the standing   is that the standing with respect to any ink is clearly established by start with easter the answers are a little bit different and i don't think there is case law that  declaratory judgment action by the insurance company and the reason that that's quite different if you look at the facts it treats they'll get involved and it's best this situation manufacture wanted to up the insurance company said t be joined in a declaratory judgment action would not be a practical result the insurance company did not join any of the individual claimants in that case individual claimants sought the right to intervene in the  tension you've got the seventh circuit saying that intervention is a tougher stand a tougher standard than standing and yet the d c circuit saying that they're the same that we have to resolve that and i guess is a rule twenty four intervention actually a tougher standard to meet in order to intervene than it is to have standing in the first place it i gryphus the fent and the injured party and the problem that you have there is that at that point under pennsylvania a no fault law which has not been repealed gryphus had a direct right of action against the insurance company that doesn't exist anymore here there is no direct right that who has the direct right against  it easter or any it is not at this point however as a practical matter there is a very real possibility that's only possibly marry right that's correct and possibly easter so if you've got easter if you've got then maybe if the standards are the same between intervention and standing there may be trees still becomes a little more relevant because murray has the claim against a i c but any doesn't have a claim against a c and clearly easter is once removed from that so murray has to win and then any has to win against mary in order for easter to have an additional pot the claim proceeds from in connection with the suit against and either win or obtain a contractual assignment of rights which is a very possible and and practical thing you are but that's yes that's true so if we go back to pre sale the point is that language one rule nineteen is really dicta you didn't have to go there and in fact the court said even if they are an indispensable party under rule nineteen we still can deny intervention if their interests are otherwise injured parties do not have a sufficient interest there to intervene it actually between the insured and the insurance company now that principle under those facts yes might seem to apply here pretty well keeping in mind you can easily distinguish rauscher which unfortunately does have facts very similar to what you have because in rauscher the injured party did have a right against the insurance company  upon the supreme court decision which we cite of a nine hundred forty one decision which held without saying that there's a direct cause of action that an injured party because of the practical and pragmatic situation which is what we have here that the injured party is really the one with a stake in the game and exactly what the standing is about could you fast forward just a little bit i mean your time is running you've got you've got two the court needs to make that determination in order to reach the merits of this case and the reason i believe easter does if you go back to the language in the supreme court case which i referred to and in our letter briefs they're talking about who agreement with the ne and say look i should have gotten you coverage i will give you my rights to go against my insurance company and that way transfer that right so as a practical matter yes the rights to russia came up because the insured had defaulted and there was a default the insurance company got a default judgment against the insured the insurance company or the insurance company then or you that russia's rights were derivative of the insured and therefore i th judgment should be applied and the court said no they're not derivative he has an independent interest in this fight and we're going to hear the case and let a proceed well i'm using the same thing the as an independent interest because whether or not there was an agent  representation at the time the policy was taken out of the car would be carpeted whether or not the car was his own car this was a pickup truck in that case roche's had an interest in that because it meant they were either going to be able to collect you're not going to be able to collect and that's why he asked in this case and doesn't make a difference whether or not murray well i don't think it does because we have the and he has an interest in getting the insurance proceeds through murray when he whether whether or not murray has independent a exactly the same legal theory of getting there is very different if you have one situation where someone has a right to argue the existence of a policy of insurance based upon an appearance or an actual agents in that's the rushers in your case and their right to therefo riveted to the purported insured that's one scenario this scenario though is not that the easter situation only knows whether or not they can collect on without this going to be anything there for them to collect on and or controversy and that's why i think it's it's important to recognize the distinction between trieste l and rauscher on those grounds and going back to the supreme court case which this court has to follow  clearly in that case the court held that from a case or controversy standpoint you look at who has the stake in the game and clearly any does and i think easter does too but again you don't have to reach that  as a who has a lot of vision would not mean anything what's wrong with well i disagree with the point that it wouldn't have any meaning if you look at the retroactive endorsement it says the retroactive date is the earlier of two events if you if you take the district court's interpretation and you move that language that is clearly under paragraph b which talks about what happens if there's a lapse in coverage and move it to the margin so that it arguably modifies paragraph a then a and b are the same there's no difference between them at that point and so that i think it is wall s great point about what is a huge lapse of time between the two between the two policies well with the short answer is they wrote it so they deal with it but as a practical matter remember that we're dealing with a claims made policy so the only cla that can be addressed are claims that are made within the policy period in this case it's the zero seven to zero eight policy period mclane of any against mary was made in two thousand and seven so it can't go back more than a statue of limitations would allow so going back to absurdity just really isn't a practical thing but you know i don't think that the court and the decisions of this quarter are clear that you can't rewrite the policy just because it's not the result that part he wanted when they wrote it and here it may not be the result that the insurance company wrote but the clear language of the policy gives us a retroactive date  thousand and five or two thousand and four i'm sorry having said that i'd like to urge the court to recognize that we don't really need a retroactive date that goes beyond two thousand and six insurance would cover would be a wrongful act it would be a wrongful act of marie the insurance agent and the argument is that the wrongful act of the insurance agent occurred at the latest on this number nine two thousand no that's not there and the district will recognize that there was a wrongful act in two thousand and six murray met with the representative of any in february of two thousand and six and the testimony was that any said i want to do something with this policy and he was complaining about rates and he sat down with mary in two thousand and six it would be incumbent upon an insurance agent at that point to say well let's look at your coverage opes you don't have dram shop coverage he didn't do that that's the negligent act that caused the harm it's a specific discrete event and what the district court said is because he was negligent also in two thousand and five and going back to two thousand and two he has no coverage and i think if i may just propose an analogy if i if i run a stop sign every day on my way to work and i'm lucky i don't get in an accident and i have a policy that says we cover you for an negligent x for claims arising out of negligent acts within the policy period and then one day my luck runs out and i get an accident and the insurance company says well no you were negligent three years before and we're not going to cover you they can't do that and the key i think that analogy brings out is this policy here is talking about claims and claims are defined specifically in the policy as injuries not injuries negligent acts occurring within claims arising out of negligent acts here the only claim arose out of the negligence of mary in two thousand and six and resulted in nothing in the end he said claims that murray should have gotten him the the exclusion for somebody having a distributorship or sales he should have a policy that covered this claim and he didn't at some point so the mistake was made when he didn't have the policy do that is that mistakes were made continuously through the relationship no question about that but the harm didn't  occur until march of two thousand and six as i did so that's correct and we think that's the trigger point that's well that's the trigger point for somebody making a claim but here the question is you should have covered me and you should have covered me from when well from the answer is from the beginning of my being on this policy now and the court is saying the best i can do for you is december ninth two thousand and five and that's before you have i find the retroactive date being january one two thousand and six because of the way i interpret the the lapse in coverage that is what judge kelly said and i think he made a mistake on both counts the says i disavow any claim based on negligence prior to january one two thousand and six but when we had that meeting in february of two thousand and six you should have gotten the coverage and that's the claim i'm making clearly in either january or february of two thousand and six and he came to him with mr tie pong the owner of any and said what can we do about my coverage it's too expensive so they and it was  in person meeting our position is that at that point in time a reasonable insurance agent should have pulled his coverage looked at it realized that he didn't have the appropriate coverage and rectified the mistake although i guess one could say that if the from saying that my coverage is too expensive it means i want less not more it's a factual issue that would be developed at the trial as to whether or not that negligence caused them harm if he was not going to take the advice the fact is the advice wasn't given and we're dealing now with the obligation of a i see to defend and indemnify mr murray in that claim and clearly a claim can be posited against him in that pending action which should be covered under analysis are trees do you mean trees down sorry is that right i mountain top yes right right now in any of that i think perhaps if i talk to the court about the thought process we go through because i think it mirrors the constitutional standard of standing all i do is represent insurance companies i file a lot of declaratory judgment actions when we make a determination as to whether or not we are going to name injured parties one of the things we do look at is does our insured murray does it look as if murray would have the assets to satisfy a judgment if he lost on the claim that was brought against him so it's in the media injury and the reason we look at that  we go if we if we bring our declaratory judgment actions and we frequently invoke the jurisdiction of the federal courts to avoid you know we're the insurance company we frequently like to state courts  so we look at that and we say if we're going to be looking down the barrel of a garnishment action three years from now or a consent judgment with an assignment what we need to do is get everybody who has what we view as a right under that policy to the to that to the proceeds under that policy to be bound so that we don't run the risk of an inconsistent judgment and i think that's where the supreme court was in the maryland casualty case they said there's a risk in inconsistent judgment but also we view and i think you need to view the emmys of this world the clients of our insured as if not in tensional third party beneficiaries at least  realistic an actual perspective they are third party beneficiaries of our insurance policy to the extent they do prevail against our client and just so it's clear to it's not atypical what's happened here is the two underlying actions have been stated nobody is investing a lot of time or effort in litigating those two cases and that's not it unusual either frequently we are you know not only the only deep pocket frequently we're the only poc so that's how we view the standing issue and under that analysis how do you how do you how do you distinguish between the needs through and is just not a third party beneficiary of our contract easter would not if she gets a judgment against any she does not get to bring an action to garnish our policy now she may have an assignment and ultimately have an interest in our in our policy but she won't be able just as we stand here today as things are today we cannot foresee or predict with any certainty that she will be able to make bringing gar didn't appeal and he's got other folks carrying the water for him but that's not unusual for our insured to say i'll file for bankruptcy you know i've got no assets i'll file for bankruptcy so i do think that as a matter of fairness the russia i think we have to look at the realities of the situation the realities of the situation are frequently we are the stakeholder and it's better for us for the industry it's not altruistic necessarily it's better for us to have issues resolved  applied principles of construction established principles of construction and that's his job or her job to the court's job to interpret in contracts and i don't think that you get to the whole issue of ambiguity and intent and a jury question as to that provision unless you first find that there's another reasonable reading of that provision and there is no other musical reading of that provision and i think that's where the more honest martin give us and i'm of the reading it to give another reading but i don't think it's reasonable there is absolutely you can get away with some pretty good movies well what i be happy to talk about that that construction i believe that first of all you can uphold the court and it don't have to agree with them on that particular issue there are other bases and i think they're in the record and it's pinion you don't even have to get to the interpretation of that provision and i think that if you look at what the appellant's are arguing now they're saying we don't care what the retroactive date is we still win because there was this meeting supposedly that happened in january or february of two thousand and six about insurance coverage and i would urge the court if it's tempted to be led down that path to look he didn't even he couldn't even say that the meeting occurred before march of two thousand and six which was when the accident was which you know that might make sense that you know when there's an automobile accident and when your customers involved you might want to go and talk about your your coverage but so there's that issue but our view of that isn't that it was what judge ampara was touching on earlier is that first of all we have to talk about what claim is that issue under our policy and it's not true that our policy covers a claim as true as determined by when damage is occur the term claim in our policy is a defined term and it means either  a demand for compensatory damages because of negligence of performing professional services or and this is important a suit so the wrongful acts that you look at you go to the allegations in the lawsuit that any brought against our insured murray and if you look at the allegations of that suit it very specifically and clearly says that beginning in two thousand murray failed to properly evaluate the liquor liability exposure of any and renewed the same or similar i think the phrase is identical coverage year after year after year the claim that's at issue here and the wrongful acts that it's based on based only on the four corners of that complaint if you look at the four corners of that complaint and you ask yourself did this failure to advise occur wholly after january of two thousand and six or even you can ask the same question did it occur wholly after november twenty fourth two thousand and four which is their position earlier that you look at that is the retro day you cannot identify any act of negligence not even the purported negligent that happened in january february of two thousand and six that is distinct from the negligence that happened in two thousand and two thousand and two and that is you failed to ask me about my business and whether i sold liquor to the public you failed to advice me that i needed liquor liability coverage there isn't any specific allegation nothing new different or distinct in what happened supposedly in two thousand and six our you know their argument course in the providing of professional services and that's also a defined term in our policy professional services is specifically defined as a placement of a policy the giving of advice about a policy so the trigger is negligent act err omission in the absolutely they're taking a very freeze frame approach first of all they're sort of confusing occurrence policies from a claims made policy but then they're saying it's almost like the last clear chance analysis and that's the only negligence that you look at but that's not what our policy says our policy says the wrongful act has to occur wholly after the retroactive date let's just say for example i think to put it in perspective let's just say  in two thousand and four so december after what they say is that the retroactive day mr murray hands of paper two to  any and says you know i've been looking at your coverage it's going to be renewed i really think you need to have let your liability coverage and and he says no expensive don't want to have like a liability coverage if that had happened even though that professional service happened you know after the policy or after the retroactive pay we wouldn't have any liability for an i'm saying that i think that's the distinction i'm saying that it's that the act or what happens without regard to an injury happens we just as we could we could be found responsible we under our policy could be found responsible for remote from the insurer are you sure could also be vindicated on the same basis it's not it's not the trigger is when the negligent act occurs and here they absolutely did not cannot based on the allegations in the complaint that was made the operative complaint here the only one that counts is the one annie versus murray if you look at the allegations of that complaint every single allegation of that the word holy of the phrase holy i don't think so your honor and perhaps holy could mean you couldn't you it's only for negligence that didn't occur before you could have been negligent before the retroactive date that's what their interpretation is that if there was any negligence that occurred before the retroactive date they don't have to provide coverage maybe holy could mean that but it could also mean the claim that is made against you arises wholly out of vents that occurred after the retroactive date and that's what we're arguing because the liability of mary to any arises out of his failure to provide adequate insurance in place on march twenty fourth two thousand and six and if i can i don't want to read a paragraph from the complaint that counsel referenced that any filed against is in the appendix at page fifty five it's paragraph seven of the complaint filed by any against mary which is the complaint for which any is seeking coverage under this policy the other point the counsel raised about what if murray had advised mr punk that he should get dram shop coverage and ponce said no it's too expensive well what happens is anyone's his mo he wins his lawsuit and he loses his lawsuit but that doesn't relieve the insurance company of the obligation to provide mr any with a defense in that lawsuit and if he is found liable to indemnify him for that lawsuit and that's what the parties are seeking in this case is to have an opportunity to proceed with the claim of any verses mary and to have the insurance company defend  and i think that the language of the policy certainly can be reasonably interpreted to require the insurance company to provide that defense and then how do you respond t argument that ok that's fine for any but with respect to easter back to the initial issue we talked about standing easter doesn't have a dog in the fight because if easter were to win easter has no right to have a garnishment against the insurance company well if he gets a claim against gets a judgment against mary murray could very well assign his rights to his claim against any to easter and then easter would stand in the shoes of any and have the same as the point you would have standing but prior to that happening well i think that the point of the broad standing is to allow parties who may have a direct claim at some point in time to participate in the declaratory judgment action which determines whether or not there's any coverage directly and that would have been that that's your direct that would be it's some point it could be very direct your honor if we have anything as counsel said a consent judgment with an assignment of rights it would be a direct interest in the policy and that's why the insurance company frankly named everybody because they're concerned important thing from everybody's perspective is that this panel reached the merits of the argument and i think that whether it's is it's based on any it's appeal or easter is a meal we can do this or you can speak and i can honor but judge was asking me specifically about the easter standing and i was responding that regardless of the easter standing i think it's clear that any has standing you don't have to have that two step removed process and if any has standing and the court reaches the merits of the claim then the parties are set up so when is the garnishment really come into play here i say work its works in many completely comfortable with my understanding of pennsylvania garnishment law i know it has changed there was a point in time when a judgment creditor had a right to bring a garnishment action against the insured naming the insurance company as an asset of the insured and go through that type of garnishment proceeding my recollection and i'm rusty on this is that that changed and at some point the pennsylvania courts allowed a direct claim from the judgment debtor against the insurance company but either way there is a right maybe there is a way to go against a procedure call or see if i can ask miss hope that question because normally i understand garnishment obviously it's you have no idea least for me how refreshing it is to have a lawyer say they are not totally comfortable with his or her understanding of people who get the idea that a lawyer should not be as comfortable as they probably are with you understand all but it really