may please the court james de young on behalf of appellant scottsdale insurance company i reserve one minute for rebuttal wow yes that's grand if you can do it this case is not about fashioning a remedy for a tragic accident resolved this case is about concerning the playing clear and unambiguous provisions of the law enforcement liability policy of insurance to determine whether there are coverage or duty of indemnification under the policy for the on their wine claim the district court's decision boiled down to the following the city of easton bought insurance coverage for civil rights claims the some in the state asserted civil rights claims that scottsdale was a duty of defense and then indemnification to the un to in the underlying would occasion in doing so the district court failed to give effect to all of the provisions of the policy especially failed to apply the employee's injury exclusion according to the extra expressed terms of the policy and rendered that exclusion is mere surplusage do we are you asking us to reverse or to vacate and re man for for further consideration by the district court if there are i believe since it's a question of wall i believe that you can reverse i don't feel that there's a need to vacate and remains although you're saying that there is well you're saying as policy language it's clear that wasn't observed rather than that he read the policy wrong is that right because you're not arguing this any ambiguity there is no ambiguity ron you're basically the district court looked at the  common exclusion number seven the workers compensation exclusion and it's undisputed i think on appeal that that particular exclusion precludes in conjunction with the exclusivity provisions of the worker's compensation act in pennsylvania precludes any pending state law clients i don't believe that there's any argument on appeal here the workers comp provision it's curious to me it says there's an exclusion for any obligation under a worker's comp law well we're not talking about the fact that there is an obligation here no one's no one's made a worker's comp claim claim you're asking for defense of litigation it's a strange provision to my mind but it precludes coverage for claims that would be personal injury or bodily injury claims that would be covered by either the worker's compensation wall or by disability wall or on a point to talk about eight now or you know i'm talking about sub seven yeah but i think i think that's a very curious provision doesn't say anything that would otherwise be covered by worker's comp it says any obligation under so that if someone makes a worker's comp public claim and you're obligated to make it you turn to your insurance company they say oh no no no we we're not going to pay on your behalf the workers comp there's a separate proceeding with respect to the worker compensation claim under the worker's compensation policy so the city of easton through scottsdale only bought one form of coverage on foresman i bill of eighty that does not provide liability for any injury doing employee that would be covered by worker's comp common exclusion number seven but i think where that where the rubber hits the highway here is exclusion number eight and does that that would the course of employment exclusion if if we decided it the way you want us to decide it that would make consideration of the workers compensation one unnecessary well i know wouldn't render it unnecessary because i think you would construe exclusion aid or to the definition of personal injury i think the district courts sole discussion of the interplay between the two was that he thought that exclusion eight was limited to the worker's compensation context simply because it used the words arising out of in the in the course of employment and the reason that the exclusion eight is is is important is that it specifically bars any coverage for a claim for personal injury personal employees of the insured there is case law every which way on this issue with different policies and i don't know that p m a is controlling or lucozade controlling or not familiar with the language  the policy in brown and root to the language of the whole thing we have here my recollection is pretty similar it's pretty similar but what's almost virtually identical is the north wales case that we had cited in our brief your honor if you look at the definition of insured and insured it is the city of easton an insured is also any full or part time employee of the city of easton right and he elected or appointed official of the city of easton all of the appellee except for the necessary part party of the state are covered as an insured the city argues that the individual  don't fall under that provision because they're not the employer and they they say to the separation of insureds provision of that but p m a which is the pennsylvania supreme court decision from sixty seven is controlling on it's never been reversed yeah but that's not the same fact pattern what it's similar enough your honor it's all they don't talk about the definition of insured at all but it was an omnibus insureds employed and on the bus insured was sued by an employee of the named insured and under p m a they said that there was not under the employee exclusion there was not coverage that was a named employee and that the separation of insurance provision could not alter that lugo was more like our fact pattern and went the other way the one thing that wasn't argued here that i was that occurred to me was the difference between an insured and the insurer because the provision because the city of east and i mean whether they are excluded or not because the city of east and as well that that's one part of my argument the other part of my argument is that the employee exclusion applies to them percent of the holding under the p m a case which is already considered and rejected the same arguments made them also it isn't limited to an employer it says or in any other capacity so the individual in pill employees and officials are insured under the policy who are sued in other capacity that other capacity being that they are a state actor for purposes of section  cover talking about the expectations of the insured what law enforcement liability activities what but yet generally the types of claims and i defend many of them under these policies would be excessive force claims are false arrest malicious understand the argument to be something like this this happened because there were no decent policies or training in place and that's a wrong that existed before this that that very sad shot went off in the room and that therefore this doesn't fall within the course of employment exception it's really a wrong associated with the failure of the city to to supervise to manage t train to have these have policies so it's not a course of women injury at all what's your response several responses your honor first of all it's an occurrence based policy and the only current's was the shooting in march of two thousand and five the extent that the underlying complaint to establish the predicate for the men now claims and supervisory liability claim cited the things the curb before january first two thousand and four they predate scottsdale policy to the extent that the the officials sued gallagher and mit meant they were public officials presumably covered under public officials policy for that the and this is your most important point the kurds face one though yes your honor i do want to make a point quickly about the reasonable expectations of the insured under the canal insurance company case from the third circuit based a superior court case the reasonable expectation of the insurance doctrine is being limited in recent years to where there was a noncommercial insured and the policy terms are not readily apparent and where the noncommercial insured is deceived by an insurance agent will the city and its insurance consult narcan experienced purchasers of insurance the policy exclusions were clear unambiguous and readily apparent in the policy and the record i devoid of any evidence that the city was deceived by scottsdale or any agent on the on acting on the part of scottsdale with respect to the presence of or the contents of these exclusions in conclusion the district court heard as a matter of law in failing to give effect to the clear plain and unambiguous policy exclusions in accordance with the well established case all the district court should have found that there was no coverage on the scottsdale policy for the underlying lawsuit the march tenth two thousand  the court i'm attorney james schumer i represent the city of easton and defendant smith men and gallaher let me point out one thing that just by way of clarification the underlined civil rights case has settled scottsdale participated in that settlement both in the goshi asians and the ultimate resolution so that did not occur without their knowledge indeed they were part of it i recognize that that's not part of the record before this court because it occurred since this case came up on appeal but it is i think maybe relevant to the city of easton purchased as comprehensive civil rights coverage to protect itself to protect its citizens they paid in two thousand and five a premium of one hundred seventy seven thousand dollars to be certain that they would not be sued and be caught without coverage well and listen in coming on them then to make sure that  covered and didn't cover just what they want me where i focus on specific language and i guess that the first question in my mind is is it the case that if we look at section eight the course of employment and interpret it the way your opponent says we should interpret it that we don't ever have to think about or worry about the workers compensation piece of this the well certainly he argues yes that either exclusion would eliminate coverage and i'm just looking for your legal position absolutely if one were to accept their argument about what the course employment exclusion means as a just a logical matter would that mean and you don't have to look at the said yeah let me start at the same spot ok i'm going to get an answer my question though because that's what he says doesn't answer my question as a legal matter if their interpretation of course of employment provision is correct does that mean that disposes of the case and there's no need to consider the workers compensation exco exclusion yes ok with only and i apologize i wasn't trying to duck the question with only one other issue which is what about personal injury equally true yeah it's really true both logically i would respectfully agree with both if you decide one then you don't have to get to the other and if you decide the employer liability piece the way they want to you don't have to get the worker's comp i agree with both those points now if i can point and let me back up the concept of the insured and the employee of the insured because there's the individuals are exclusion the scotts here was wrong number one one the basis of an analysis of the language number two it's wrong on the basis of the understanding of both parties both parties and number three it's wrong for public policy reasons as well let me start at the simplest level which is if you look at the record the record reflects that scotsdale says that the employee injury exclusion was intended to be a worker's comp exclusion but let's you started with the language and then the intent and then policy let's start with the language ok the that goes back to what i said to judge jordan about occurrence the starting point is what's your crimes they say the occurrence is to shoot the a current vs of b my clients can't conceivably be the shooter because if the only claim against my clients was there was a shooting there could be no civil rights crime because there is no response yet superior or liability but occur when ins an event it is a specific event and law enforcement wrongful act means any actual or alleged act error or omission neglect or breach of duty by the insured which seems to me the civil rights the lack of policy while conducting law enforcement activities which results in a breach of duty by the failure to have policies in place etc resulting in personal injury caused by an occurrence i e the shooting there is no question and i agree fully that the wrongful acts asserted against respectfully disagree there your honor these are the occurrences which give rise to the claim against my client there could be no other person shot but what if you if he wasn't shot then there is no causation but the but the question i have cited to this court's opinion in nationwide and to the pennsylvania supreme court case apply for both sex in the case of a shooting the question of whether or not there is an occurrence as it relates to a particular party is from the perspective of the insured and from the perspective of the insured the wrongful act in those cases was the allegation of negligen despite the fact that there was an intentional should and in this case the wrongful acts against my clients or that they failed to have proper policies except for except in any event don't we have to send this back because all of the arguments on both sides have to do with aspects of this policy in the interpretation of this policy of the just sanchez didn't look at i would respectfully disagree with that and are as saying there's an ambiguity here because everybody's disagreeing about what this means so there's two what i'm what i'm saying is that with respect to the case this as judge jordan pointed out in in which i agreed with this exclusion which talks about in the course of employment and arising out of employment could not conceivably could not conceivably be related to so means employment it couldn't be because number one the wrongful acts that my client's allegedly committed could have occurred years before they could have occurred before so many was ever a police officer but then there's a judge trying to fruition when the when that gun goes off right i mean i go back to judge and else question if it's an event a failure to have a policy how can you describe that isn't a bent it's a it's a an existing condition but it's not an occurrence or an event is it it is i mean you walk in one day and say there's no policy that's the event today it's just it's just the way it is it's not an event is it a while if it actually a series of events or a series of failure to have advance i mean i guess you don't argue but i don't mean to be semantical when i say that but what i'm saying you have to be that's the whole point we were dealing with trying to figure out what the what those exact words mean and how do we put a construction on the word event or occurrence that fits with the legal argument you're making to us which is that the failure to do something over a long course of time is an event or an occurrence that's that's what i would respectfully argue that the case that that now the case is admitted we focus on the negligence in those cases there was a landlord for example nationwide and there was a tenant who was murder now obviously the ten o'clock murdered that was an event but the claim the occurrence according to this court was focusing on the insureds situation and there was an allegation they were negligent sort of a nonevent a failure to do something here the allegation is that there were constitutional infractions but what i don't want to lose sight of is what's really important which is the specific language of the exclusion what briars for it to apply that this has to have a risen out of someone's employment if another police officer from a totally different municipalities happened to be standing there they were there at that day they were doing some kind of met the pope training among multiple municipalities if a different police officer happened to be standing there and he would have had a claim clearly he would of his widow would have had a claim for exactly the same things as my client got sued for same in is how how how does it not arise injuries certainly he's he's in the room cleaning the gun as a consequence of him being a cop sure completely that he's a police officer employed by us than cleaning his gun yet what the case law from this actually started with the pennsylvania supreme court and then this wart says that arising out of has a definition and that means presently connected to now that has to be different then in the course of his employment it has to mean something different and here my point is that if it doesn't matter if a non employee of easton is there with respect to the injury and claim that resulted then how could it be arising out of his employment it couldn't be because otherwise it there would be no claim with respect to somebody else arising out of house to mean that there is a connection between his employment and what happened and it's there not how is there not that connection here i'm employed as a judge i go to a judicial conference and something happens to me it's arising out of my employment it's not you know it's training and it's learning having to do with my job and i'm doing my judicial function it's rising i don't know how to interpret your being there as a judge now you could have been there in any capacity isn't that it's isn't that exactly the way the cases interpret the course of employment discussion when they're talking about respondents here your liability when they're discussing those things unless you're absolutely clearly off on some frolic and future of your own all the stuff that happens while you're out there doing stuff associate with your employer is judged by the law at the in the course of your employment and well and we bought the policy with the understanding that this was not an explosion well let me let me ask you a question about that understanding you have references to what mr earlier thinks and what she gave you robin's things but why does what they think have any legal bearing here because it's a question of what was intended what's the intention of the parties right and how does what they think show anything about what the parties well number one that as i quoted scottsdale itself in responding to a and scott starts off us but don't we have i mean if you need to get to intent that we're going beyond the language we have to find an ambiguity we probably asked sanchez to go back and do it over taking testimony as to all these ten aspects that what should happen is that we're getting to intent were we have to find ambiguity first and then somebody has got to take some evidence on this you know i tried to answer judge jordan's question i mean that was the basis for my response i'm posing a different i agree anymore then if your honor was an automobile accident that arose out of your position as a federal judge thank you thank you very much mr young one minute mind that is but for the employment but for his employment as a city police officer officer solomon would have been in that room unloading his weapon following training which was directly related to  arising out of and in the course and scope of his employment the arising out of in course the scope of employment is there a difference between in the course of employment and arising out of employment the way mr huber has process believe this both falls on the ambit of causally connected to the employment and he was acting in the course of his employment and the injury bodily injury which is what the exclusion goes to occur arising out of his employment what the city fails to look at is the war in any other capacity claim that covers the supervised reliability  claims and they haven't distinguished that at all they haven't even addressed them or in other capacity i believe that that is dispositive as well i think that the coverage determination can be made conclusively based on this record based upon the clear and unambiguous provision of exclusion and thank you thank you thank you counsel this is well are you take it under advisement and