[00:00:00] Speaker 04:
Next case this morning is 24-8077, Liberty Mutual Insurance Company versus Cincinnati Insurance Company.

[00:00:10] Speaker 04:
Counsel, propel them if you'd make your parents and proceed, please.

[00:00:17] Speaker 03:
Good morning.

[00:00:18] Speaker 03:
May it please the court, Vincent Villarda for Cincinnati Specialty Underwriters, improperly pled to Cincinnati Insurance Company.

[00:00:27] Speaker 03:
As the court I'm sure is aware, the underlying

[00:00:30] Speaker 03:
Cases that this case arose from were two personal injury complaints arising from a trucking accident.

[00:00:38] Speaker 03:
The underlying complaints there set forth allegations that General Contractor Simon contractors improbably graded a road and independent claims against Cincinnati's insured SMJ for claims against SMJ, sorry, for improper guards and warning hazards.

[00:01:02] Speaker 03:
The complaints do not claim that SMJ was at the site or responsible for improper grading either during or after Simon completed its work.

[00:01:10] Speaker 03:
Nor did the complaints allege that Simon informed SMJ that there was a section of the road that needed additional signage.

[00:01:17] Speaker 03:
Because the allegations against Simon did not arise from any connection to SMJ's work, Simon was not additionally assured on the policy and no defense obligations were owed to Simon.

[00:01:28] Speaker 03:
The only agreement between Simon and S&J was drafted by Simon, therefore as to be construed against Simon.

[00:01:36] Speaker 03:
The agreement in paragraph six states that subcontractor agrees to defend, indemnify, protect, safe, harmless the contractor and owner from all liability, losses, damages, et cetera, including with attorney's fees and costs arising from bodily injury to persons whether employed by the contractor or others.

[00:01:56] Speaker 03:
including without limitation the loss of use, occurring, or arising out of, or in connection with SMJ's work, whether or not occurring, or arising out of, or claimed to have occurred, or arisen out of concurrent acts, negligence, or omissions of the contract.

[00:02:10] Speaker 03:
The insurance policy that issues Cincinnati's policy contain additional insured endorsement.

[00:02:16] Speaker 03:
That endorsement provides who is an insured is amended to include as an additional insured any person or organization

[00:02:22] Speaker 04:
We have agreed in writing by contract or agreement and the language speaks in that additional insured provision about caused in whole or in part by your acts or admissions and performance of your ongoing operations

[00:02:38] Speaker 04:
for the additional insurer.

[00:02:40] Speaker 04:
Well, then you look at what the undertaking was by SMJ, and that undertaking seemed to relate precisely to what is alleged to be the failing here.

[00:02:54] Speaker 04:
The protection of guard rails to protect against harm.

[00:02:58] Speaker 04:
That's exactly what the suit is about, is it not?

[00:03:01] Speaker 03:
Actually, the suit is also about direct allegations against Simon for improper grading.

[00:03:06] Speaker 04:
And let's take the position that that's true for the moment, assuming that's true.

[00:03:11] Speaker 04:
That's not all that the suit is about.

[00:03:14] Speaker 04:
And so if the suit were about some allegations against Simon only and some allegations against S&J that triggered that provision in the additional insurer, that'd be enough, would it not?

[00:03:26] Speaker 03:
And respectfully, I don't believe so, Your Honor.

[00:03:28] Speaker 04:
And why not?

[00:03:29] Speaker 03:
Because in the underlying complaint brought by Mr. Gibson and Mr. Ware,

[00:03:33] Speaker 03:
Mr. Gibson alleges that while acting as general contractor for the project, Defendant Simon was required to provide safety and convenience and included additional allegations about improper grading.

[00:03:45] Speaker 03:
Slope on the side of the road.

[00:03:46] Speaker 03:
Allegations say that the truck went around the slope, truck rolled off.

[00:03:50] Speaker 03:
so i guess they had nothing to do with the actual grading which was the responsibility side yet yes but s and j was supposed to be providing protections to alert to the grading right that's correct but that well and they did well the reason that the truck went off the road is there were notice that there was going to be a problem at the great that there was and that's the other issue your honor strictly is s and j was not even on the site or called by side nor in control of this now most of the cases

[00:04:20] Speaker 02:
Well, that's a defense to liability for S&J, isn't it?

[00:04:25] Speaker 02:
Correct.

[00:04:25] Speaker 02:
As opposed to, I mean, the allegations and the complaint suggested that they both failed to warn, not just Simon, not just S&J, but that they both did it.

[00:04:44] Speaker 02:
Just because, I mean, SNJ wasn't notified, I mean, how does that get them out of the indemnity and out of the, you know, providing a defense?

[00:04:56] Speaker 03:
So that's a different issue with indemnity, and I'll step back a little bit.

[00:04:59] Speaker 03:
When this tender came into Cincinnati, and I think it was back in 2022, tender was denied.

[00:05:05] Speaker 03:
Nothing was heard for years after that.

[00:05:07] Speaker 03:
The underlying suit settled.

[00:05:08] Speaker 03:
Liberty and Cincinnati each indemnified on their own.

[00:05:12] Speaker 03:
There was no further pursuit of any defense fees until after the cases settled.

[00:05:16] Speaker 03:
So indemnity is not even the issue here.

[00:05:18] Speaker 03:
And as you see in all these cases they talk about additional insured coverage here, indemnity there.

[00:05:23] Speaker 03:
This case is strictly, it's kind of backwards in my mind.

[00:05:26] Speaker 03:
I mean, handling these cases throughout the years, usually it's a case for additional insured coverage.

[00:05:31] Speaker 03:
Whereas here it's simply reimbursement of defense fees.

[00:05:34] Speaker 03:
And pursuant to the agreement, it's clear that it's only arising out of any liability has to be imputed from any allegation against Simon that SMJ did it wrong.

[00:05:44] Speaker 03:
And that's just not the case in these complaints.

[00:05:46] Speaker 03:
There's no allegations against Simon that SMJ misperformed.

[00:05:50] Speaker 00:
Well, obviously the court found First Mercury Insurance to be an important case.

[00:05:56] Speaker 00:
And in that case, as the district court notes, the underlying complaint only sued the contractor.

[00:06:07] Speaker 00:
There were facts to suggest a causal relationship between the subcontractor's action and the injury, such that the duty to defend was triggered.

[00:06:16] Speaker 00:
So even though the suit was only against the contractor, which is even more on your side of the ledger than our present case,

[00:06:25] Speaker 00:
the court still found a duty to defend.

[00:06:28] Speaker 00:
And in fact, Cincinnati was on the other side of that case with the same policy language, right?

[00:06:33] Speaker 03:
Well, I believe that case is distinguishable first.

[00:06:38] Speaker 03:
First, I believe the plaintiff in that case was the employee of the sub, so they couldn't sue the sub directly, as I recall.

[00:06:43] Speaker 03:
So they sue the GC, GC brings in the sub, he's on these cases on a third party claim for indemnity.

[00:06:49] Speaker 03:
In that case, there was no issue about defense, because they did.

[00:06:51] Speaker 03:
They took over defense right away.

[00:06:55] Speaker 03:
Second, that case I believe dealt with a fall, I think it was roofing work and a fall through a hole where I think the sub even asked, was asked to direct an employee to inspect this hole and that employee fell through.

[00:07:08] Speaker 03:
Clearly distinguishable because SNJ again was not even on the site where Simon was performing the work.

[00:07:13] Speaker 03:
And the work of Simon did not include SNJ's work.

[00:07:16] Speaker 03:
The work of Simon included and it was alleged improper grading.

[00:07:20] Speaker 00:
But it was more than that.

[00:07:21] Speaker 00:
There's the signage, there's the barriers, there's... SNJ isn't a stranger out there.

[00:07:27] Speaker 00:
They have contracted responsibilities that bear directly on what happened here.

[00:07:36] Speaker 00:
Had there been barriers, had there been better signage and so forth, the truck might not have crossed the one inch barrier to come back and roll.

[00:07:44] Speaker 00:
And so, certainly,

[00:07:47] Speaker 00:
S&J is involved in this, and if it's involved for some, there's a duty to defend for all, is there not?

[00:07:55] Speaker 03:
So that's where I think is the difference, because the contract, like I just read, says has to be arising out of the work of S&J.

[00:08:04] Speaker 03:
Here there were independent allegations, and that's the crux of our argument throughout the briefing.

[00:08:09] Speaker 02:
Well, it could be the work of SNJ or the omission, right?

[00:08:13] Speaker 03:
An act or omission.

[00:08:14] Speaker 03:
Sure, act or omission.

[00:08:15] Speaker 03:
Right.

[00:08:16] Speaker 03:
But again, here, there's just the work of Simon.

[00:08:18] Speaker 03:
They were on the site.

[00:08:20] Speaker 03:
They're the ones that graded.

[00:08:21] Speaker 03:
SNJ did not grade any part of it.

[00:08:24] Speaker 03:
And there's allegations in the complaint for improper grading caused the accident.

[00:08:27] Speaker 02:
But what do you do about, I mean, there's also allegations in the complaint about failures to warn.

[00:08:32] Speaker 02:
Sure.

[00:08:32] Speaker 02:
Right.

[00:08:33] Speaker 02:
And that's pushed off on both parties, both Simon and SNJ, right?

[00:08:39] Speaker 02:
You don't contest that, do you?

[00:08:40] Speaker 02:
No, not at all.

[00:08:41] Speaker 02:
And they said Simon should have done it and didn't do it.

[00:08:44] Speaker 02:
S&J should have done it and didn't do it.

[00:08:47] Speaker 02:
I mean, so isn't that an allegation against S&J as to its own omission?

[00:08:53] Speaker 03:
And I think that's where the complaints do separate because there's nowhere that it says Simon's negligent because S&J didn't perform the work.

[00:09:01] Speaker 03:
They didn't name S&J in relation to what Simon's work was.

[00:09:06] Speaker 03:
So the position that Cincinnati took was reasonable.

[00:09:09] Speaker 04:
I don't understand that point.

[00:09:10] Speaker 04:
What are you saying?

[00:09:11] Speaker 04:
What was your response to Judge Carson?

[00:09:14] Speaker 03:
There were independent allegations of negligence against each party.

[00:09:17] Speaker 03:
Usually in these cases, there's allegations, you know, for instance, in the first Mercury case, the sub was controlling the site, working on the site.

[00:09:24] Speaker 03:
That was not the case here.

[00:09:25] Speaker 03:
There's independent allegations against Simon for their negligence and improper grading, independent allegations against S&J for failure to warn.

[00:09:33] Speaker 04:
Well, I'm looking at the Gibson complaint.

[00:09:37] Speaker 04:
The Gibson complaint speaks to both defendants throughout.

[00:09:41] Speaker 04:
Where do you get this independent allegation stuff?

[00:09:43] Speaker 04:
I mean, if, for example, we're looking at paragraph 16, both defendants fail to warn drivers of any potential danger where the edge drop-offs along the projected exceeded one inch in violation of the controlling DOT specifications.

[00:09:57] Speaker 04:
Both defendants.

[00:09:59] Speaker 04:
What, how, how does that become Simon's problem alone?

[00:10:04] Speaker 03:
Well, the Gibson complaint also says that Simon alleged, Mr. Gibson alleged that Simon breached his duty by failing to provide adequate warnings for his drop-offs, sign or erect sufficient barriers to protect drivers.

[00:10:15] Speaker 03:
Then it says Mr. Simon alleged, Mr. Gibson alleges that defendant S&J is responsible for his own acts and omissions.

[00:10:22] Speaker 03:
And they've said that throughout the complaint.

[00:10:23] Speaker 03:
So again, these cases do talk about independent allegations against, which is what the contract says,

[00:10:29] Speaker 03:
Let me ask two questions.

[00:10:32] Speaker 04:
One, let's assume, and this is an assumption now, that only a portion of these two underlying complaints, only a portion of it, involved joint activity of SNJ and Simon.

[00:10:46] Speaker 04:
In other words, trying to hold both parties liable for their conduct.

[00:10:52] Speaker 04:
And all of the rest of it had independent allegations against each of them.

[00:10:56] Speaker 04:
Would you be relieved of a duty to defend?

[00:11:00] Speaker 03:
well again pursuant to the agreement with simon i think that was a pretty straightforward question what's the answer to the question i think with his independent allegations yeah they would be relieved of the duty to defend if there were a mixture of independent and non-independent allegations in the complaint would you be relieved of a duty to defend in that narrow interpretation yes here i don't think that's the case in that narrow interpretation yes you would be relieved of a duty to defend

[00:11:31] Speaker 04:
And again, that gets down to what is sure or tell me.

[00:11:35] Speaker 04:
What is the answer to the question?

[00:11:37] Speaker 04:
Would you be relieved of a duty to defend if there was a mixture in the complaint of independent actions by each one, allegations of liability as it relates to each one, and some that involved joint activity?

[00:11:52] Speaker 04:
Would you be relieved overall of a duty to defend?

[00:11:56] Speaker 03:
For the additional insured, I believe so.

[00:11:58] Speaker 04:
Okay, the second question is, what I, help me to understand what your conception is of the relationship of the additional assured language and the actual subcontract.

[00:12:16] Speaker 04:
And I guess the best way I can do is tell you at least what I posit and you tell me where I'm going.

[00:12:22] Speaker 04:
It seems to me that initially we start this inquiry by looking at the additional insured language.

[00:12:28] Speaker 04:
And what does the additional insured language say?

[00:12:31] Speaker 04:
And it speaks of operations in question.

[00:12:33] Speaker 04:
Okay, with that point in question, you then look at the subcontract and you say, actually, what are the obligations that were involved in S&J's responsibilities vis-a-vis assignment?

[00:12:47] Speaker 04:
I mean, that's how I'm looking at it.

[00:12:51] Speaker 04:
In other words, the beginning and essentially the dispositive language in some ways is the language in the policy, right?

[00:12:58] Speaker 04:
Correct.

[00:12:59] Speaker 04:
Okay.

[00:13:02] Speaker 03:
I think I have two minutes on reserve.

[00:13:20] Speaker 01:
Dan Roener on behalf of the Appellee Liberty Mutual Insurance Company.

[00:13:25] Speaker 01:
I want to start where some of your questions left off and just point out a factual issue with respect to the contract, the subcontract that's at issue because some language got left out.

[00:13:37] Speaker 01:
The language in the subcontract with respect to indemnification says, occurring or arising out of or in connection with the subcontractor's work, whether or not occurring or arising out of or claimed to have occurred or arisen out of the concurrent acts, negligence or omissions of the prime contract.

[00:14:01] Speaker 01:
That language was left out.

[00:14:02] Speaker 01:
It is important.

[00:14:03] Speaker 01:
Now, ultimately, I guess you think the important part of that language has to do with the concurrent acts.

[00:14:11] Speaker 01:
I think there are two parts that are important, Your Honor.

[00:14:14] Speaker 01:
First, I think the argument was focusing on the arising out of, and it's occurring or arising out of or in connection with.

[00:14:24] Speaker 01:
So I think that's important.

[00:14:25] Speaker 01:
And second, it expressly identifies the fact that the fact that there may be allegations of concurrent acts of negligence by the prime contractor does not impact their indemnification obligations.

[00:14:41] Speaker 01:
But now getting to more of the focus, which I think Chief Judge Holmes, you were focusing on... And how did those...

[00:14:47] Speaker 04:
As an analytical matter, how do those indemnification provisions relate to what's at issue here?

[00:14:54] Speaker 04:
And the reason I ask that is, again, going back, and I'm just trying to see how these two pieces fit together in the analysis.

[00:15:01] Speaker 04:
What it seemed to me one would do is you would look at the language.

[00:15:05] Speaker 04:
It says ongoing operations, for example, in a whole or part that is in the

[00:15:11] Speaker 04:
the additional insurance language and say, okay, fine, what are the operations that this subcontractor committed to do?

[00:15:20] Speaker 04:
In other words, that wouldn't really relate to what they agreed for indemnification purposes, would it?

[00:15:24] Speaker 04:
It would just relate, what is the essence of what you said you would do?

[00:15:31] Speaker 01:
Well, to answer your question, I agree that you start with the additional insurance provision.

[00:15:37] Speaker 01:
and you interpret that provision pursuant to the standards that have been set out under Wyoming law.

[00:15:45] Speaker 01:
In this case, the express language is that the additional insured applies if there are allegations of bodily injury, which there are here, caused in whole or in part by the acts or omissions of S&J.

[00:16:00] Speaker 01:
And the cases that have addressed this type of language in the 10th Circuit and any insurance policy within Wyoming

[00:16:09] Speaker 01:
tell courts, well, where do you need to look to see whether this applies?

[00:16:14] Speaker 01:
We look at the complaint.

[00:16:16] Speaker 01:
In this case, the complaint, as you all noted, has multiple, well, there are two complaints, they're very similar, but have multiple allegations where either they expressly identify the fact

[00:16:30] Speaker 01:
that the bodily injury was caused, at least in part by SNJ, or they expressly state that both defendants were responsible for the bodily injury.

[00:16:42] Speaker 01:
In any case,

[00:16:43] Speaker 01:
And this is what the district court focused on and found.

[00:16:48] Speaker 01:
There really is not much debate looking at that complaint as to whether it falls within the language of the additional insured provision.

[00:16:58] Speaker 01:
It's really not debatable at all.

[00:17:02] Speaker 01:
What I hear Cincinnati arguing is that there's somehow some limitation set forth in the subcontract that limits the application of this additional insured provision.

[00:17:16] Speaker 01:
And as I discussed at the very beginning, there isn't.

[00:17:19] Speaker 01:
There is no limitation that would apply under the facts here.

[00:17:25] Speaker 01:
Could there be?

[00:17:26] Speaker 01:
Certainly there could be.

[00:17:28] Speaker 01:
What the additional insured provision says is we're not going to insure an additional insured any more than what the contract provides.

[00:17:39] Speaker 01:
So through, now there might be other issues with that subcontract, right, in terms of the agreements between the two parties as to what their obligations were in terms of providing additional insured.

[00:17:50] Speaker 01:
protection but so that could be debatable as to whether the subcontractor complied with its obligations if it provided an additional insured coverage that actually didn't do what it was supposed to do under the subcontract and we don't that's not an issue here but absolutely that is what

[00:18:13] Speaker 01:
through this additional, through this contract, you could have, they could have had some kind of limitation in the subcontract where the insurer could have said, well, yes, under our language it might apply, but because of the way the subcontract's written,

[00:18:35] Speaker 04:
we don't have to provide but would it be that's but doesn't well just understand if that is the argument i mean it if there's some language in the subcontract with that language that relate to and be present in the provision that relates to the additional insurer in other words the the s and j agrees to make you an additional insurer but here all these exceptions that were not that aren't going to be covered by this additional insurer provision

[00:19:03] Speaker 04:
In other words, and so wouldn't it relate then to the scope of insurance as opposed to some question of indemnity?

[00:19:10] Speaker 04:
Because indemnity talks about this is our relationship between each other.

[00:19:14] Speaker 04:
And I know there's a cap.

[00:19:16] Speaker 04:
I know that there would be a cap on additional insured up to the amount that essentially you would be insured, right?

[00:19:21] Speaker 04:
Isn't that what the language essentially says?

[00:19:23] Speaker 04:
Yes, yes.

[00:19:24] Speaker 04:
Okay.

[00:19:24] Speaker 04:
Well, okay, I get that.

[00:19:27] Speaker 04:
So just help me to try to understand then what would be the nature of any sort of exclusion that could be present.

[00:19:35] Speaker 01:
I think you're right, Judge.

[00:19:37] Speaker 01:
I'm not sure that I've, I don't think it applies.

[00:19:41] Speaker 01:
I don't think it's applicable in this case.

[00:19:43] Speaker 01:
I think that the focus of the district court decision, the focus of our arguments has been what does the policy say?

[00:19:54] Speaker 01:
Do the allegations of the complaint fit within the policy?

[00:19:57] Speaker 04:
As is generally the way these things play out.

[00:20:00] Speaker 01:
Absolutely.

[00:20:01] Speaker 04:
Which is why this focus on the subcontract is sort of puzzling to me.

[00:20:04] Speaker 04:
I mean, generally, you look at the complaint, you look at the policy, and you decide whether there's a duty to defend, right?

[00:20:10] Speaker 01:
And if you've looked at our briefing, that that's exactly what we think is the appropriate process, and that's what the district court did in this case.

[00:20:17] Speaker 01:
The other piece that may be missing a little bit is, I mean frankly I don't understand entirely Cincinnati's position with respect to this independent duty argument.

[00:20:32] Speaker 01:
First, I don't see it in the complaint itself.

[00:20:34] Speaker 01:
I don't see some distinction where there are, that somehow there's no allegation

[00:20:42] Speaker 01:
that the prime contractor, that Simon might be liable for something that the subcontractor did or didn't do.

[00:20:50] Speaker 00:
How about the grading?

[00:20:52] Speaker 00:
Simon, that's exclusively.

[00:20:54] Speaker 01:
Absolutely, absolutely.

[00:20:55] Speaker 01:
The fact that allegations were made that

[00:21:02] Speaker 01:
might be independent in terms of potential claims and liability risk.

[00:21:09] Speaker 01:
The provision here that requires Cincinnati to insure Simon is an additional insured, all you're looking at is, is there bodily injury that's alleged to have been caused, at least in part, by SNJ?

[00:21:26] Speaker 01:
So the fact that there might be even an independent allegation against Simon that, hey, Simon, you also did this has nothing to do with S&J.

[00:21:36] Speaker 01:
You also did this that caused injury.

[00:21:38] Speaker 01:
That has no impact whatsoever on whether Simon is an additional insurer or not.

[00:21:42] Speaker 01:
Because the only standard that needs to be met is that there's bodily injury that's alleged to be caused in whole or in part by S&J.

[00:21:52] Speaker 04:
And this goes back to the question I asked earlier.

[00:21:54] Speaker 04:
If in these underlying complaints you had a mixture of allegations, some that appear to, let's say, just assuming,

[00:22:04] Speaker 04:
appear to only implicate activity of Simon.

[00:22:07] Speaker 04:
Simon did this.

[00:22:09] Speaker 04:
There would have been no scope of operations by SNJ that would have been implicated by those allegations.

[00:22:15] Speaker 04:
But then, in connection with the same bodily injury, you had in that complaint allegations that were directed at SNJ that implicated Simon.

[00:22:25] Speaker 04:
In that circumstance, as a matter of law, is there a duty to defend?

[00:22:30] Speaker 01:
Absolutely.

[00:22:31] Speaker 01:
Otherwise, what does in whole or in part mean?

[00:22:37] Speaker 01:
That's the purpose of that language, in whole or in part.

[00:22:44] Speaker 00:
In part could mean that it was done jointly.

[00:22:55] Speaker 01:
I think you're right.

[00:22:56] Speaker 01:
I still don't think it changes the result, but theoretically you could have a situation where there are independent actions by the two defendants versus an action that was done by both.

[00:23:12] Speaker 01:
How important is First Mercury to our disposition?

[00:23:21] Speaker 01:
I don't think it's required.

[00:23:24] Speaker 01:
I think that it's essentially a case with very similar language where, and actually better facts in terms of the applicability in our case.

[00:23:36] Speaker 01:
Because as at least someone noted, in First Mercury there wasn't even an allegation against the subcontractor.

[00:23:45] Speaker 01:
It came out in trial that there were some defenses that were asserted.

[00:23:50] Speaker 01:
that pointed to the acts and omissions of the subcontractor, and it was based on that that the additional insured provision kicked in.

[00:23:59] Speaker 01:
But I think that at base, this is a simple contract interpretation question.

[00:24:09] Speaker 01:
And the additional insured provision is clear and unambiguous, as the district court found.

[00:24:13] Speaker 01:
The allegations, the complaint, are clearly alleged that SNJ, at least in part, caused the injuries at issue.

[00:24:24] Speaker 01:
And whether you have First Mercury or not, the district court judge and this court can look at that contract, look at the complaint, and reach the conclusion

[00:24:34] Speaker 01:
that the allegations of the complainer sufficient to invoke additional insured protection for Simon.

[00:24:43] Speaker 02:
So, on the first Mercury decision, does it seem to be distinguished by your opposing counsel on the idea that it was an indemnity case as opposed to a duty to defend case?

[00:24:56] Speaker 01:
Well, I didn't fully understand, I mean, there is, in First Mercury, they deal with the duty to defend, and the language that is addressed deals with the duty to defend.

[00:25:11] Speaker 01:
There was some reference to the timing of this particular case.

[00:25:18] Speaker 01:
The timing of this case was the defense was tendered, case was filed.

[00:25:25] Speaker 01:
The death action that was initiated by Liberty Mutual was during the pendency of the case.

[00:25:32] Speaker 01:
It wasn't after the case was done.

[00:25:34] Speaker 01:
During the pendency of the case, we brought this action and

[00:25:40] Speaker 01:
at some point after this case was filed, a settlement was reached in the underlying litigation on indemnity.

[00:25:50] Speaker 01:
No impact, in my view, that has no impact whatsoever on whether Cincinnati had a duty to defend and still has a duty to defend.

[00:26:00] Speaker 01:
Now clearly, to the extent there was a duty to indemnify, which

[00:26:04] Speaker 01:
potentially there might have been, the case was settled and Liberty Mutual was part of the settlement.

[00:26:10] Speaker 01:
And so there is no decision upon which any decision on liability, the kinds of issues that might get more complicated as to who did what and who had what duties on the liability side, that's done, that part has been settled.

[00:26:23] Speaker 01:
But the duty to defend is based on the complaint itself and only the complaint.

[00:26:32] Speaker 01:
Any more questions?

[00:26:34] Speaker 01:
I'm not seeing any.

[00:26:36] Speaker 01:
All right, I'm done.

[00:26:37] Speaker 01:
Thank you.

[00:26:49] Speaker 03:
Thank you.

[00:26:51] Speaker 03:
Just want to point out

[00:26:52] Speaker 03:
I believe we cited several cases in our briefing.

[00:26:55] Speaker 03:
The Mid-Continent case held in the Southern District of Florida.

[00:26:58] Speaker 03:
I know it's not in this court.

[00:27:00] Speaker 03:
Could be persuasive, however.

[00:27:02] Speaker 03:
Plans to assure there did not have an obligation to defend the additional insured, even though the operative complaint also asserted a claim against the named insured.

[00:27:10] Speaker 03:
Because the count asserting negligence claims against the named insured was separate and independent from the count asserting negligence claims against the additional insured.

[00:27:18] Speaker 02:
Isn't the problem here that

[00:27:22] Speaker 02:
if SNJ had performed their duty to warn that it would have alleviated the injury.

[00:27:32] Speaker 02:
So I mean, you could look at this and say, yeah, Simon is, you know, SNJ did cause it and SNJ and Simon is being damaged by it.

[00:27:46] Speaker 03:
Well, here there was no finding of liability was settled.

[00:27:49] Speaker 03:
So these were just allegations.

[00:27:50] Speaker 02:
No, I understand that.

[00:27:51] Speaker 02:
I mean, that's the natural inference of the allegation.

[00:27:53] Speaker 02:
I mean, they didn't care who didn't put the signs up.

[00:27:58] Speaker 02:
They said it's everybody's job to put the signs up.

[00:28:01] Speaker 02:
And so if your client would have put the signs up,

[00:28:03] Speaker 02:
Well, the signs were there.

[00:28:04] Speaker 02:
In their opinion, there wouldn't have been an injury.

[00:28:08] Speaker 03:
Actually, my client is the insurance company.

[00:28:11] Speaker 03:
You're insured.

[00:28:13] Speaker 03:
How's that?

[00:28:14] Speaker 03:
Yeah.

[00:28:15] Speaker 03:
And again, the cases that cite independent allegations of negligence.

[00:28:19] Speaker 03:
That's what we said throughout the briefing.

[00:28:20] Speaker 03:
And here there are independent allegations of negligence against Simon, which are not required to be defended by Cincinnati.

[00:28:27] Speaker 04:
What about these Florida cases?

[00:28:31] Speaker 04:
The district court wouldn't oblige to follow those Florida cases, was it?

[00:28:35] Speaker 04:
Of course not, but they could be considered.

[00:28:37] Speaker 04:
And why do you think that Wyoming, if we were applying Wyoming law, why do you think Wyoming would apply those Florida cases?

[00:28:45] Speaker 03:
The court can do as they wish, but also the first Mercury case was in New Mexico.

[00:28:49] Speaker 03:
Wyoming was supposed to be predicting what Wyoming would do, right?

[00:28:51] Speaker 03:
And first Mercury case was in New Mexico.

[00:28:54] Speaker 02:
Did you provide any argument or authority that the Florida cases that the law applied in those cases interpreted insurance law in the same manner as Wyoming?

[00:29:05] Speaker 03:
I believe it was fairly consistent throughout Florida, New Mexico, Wyoming, Utah.

[00:29:12] Speaker 03:
Do you remember if you made that argument?

[00:29:14] Speaker 03:
I believe it was made in the beginning of the briefing.

[00:29:17] Speaker 04:
That's precisely the point I was trying to get at.

[00:29:19] Speaker 04:
I mean, if they're going to be relevant, they're going to have to be some basis to believe that Wyoming law would apply them, right?

[00:29:25] Speaker 03:
And I think insurance policy interpretation is fairly consistent with the cases we've cited.

[00:29:32] Speaker 04:
Thank you.

[00:29:33] Speaker 04:
Thank you, counsel.

[00:29:34] Speaker 04:
Thank you both for your arguments.

[00:29:37] Speaker 04:
Uh, cases submitted and as I indicated, we're gonna