CHIEF JUSTICE: GOOD MORNING , LADIES ANDGENTLEMEN, AND WELC OME T O THE FLORIDA SUPREME COURT. THE FIRST C ASE ON TODAY'S DOCKET IS TAU RUS HOLDINGS VERSUS UNITED ST ATES FIDELITY AND GUARANTY . ARE THE PARTI ES REA DY ?

CHIEF JUST ICE PARIENTE. JUSTICES. MAY IT PLEASE THE COURT. MY NAME IS CHRISTOPHERKNIGHT, AND I REPRESENT TAURUS HOLDIN GS , IN C. AND TAURUS INTER NATIONALMANUFACTURING, INC., OF MIAMI. OUR GENERA L COUN SEL CY B LOOMIS HERE , OUR GE NERAL CO-COUNSEL ARE ME , AND MR . HARBIN WILL BE CONDUCTING OUR ARGUMENT TODAY. THANK YOU.

CHIEF JUSTICE AND T HEOTHER JUSTICES , I T IS A PLEASURE TO BE HERE. AS YOU KN OW, THIS IS A CERTIFIED QUES TION F ROM THE ELEVENTH CIRCUIT .

WHY DO THEY ELECT TO CERTIFY THESE INSURANCE CASES TO US?

PARTICULARLY ONE THAT WE SUBMITTED WAS SO EAS Y U NDER EXISTING FLORIDA LA W. I DON'T KNOW. BUT THE IS SUE BEING WHETHER LAWSUITS, NUMEROUS LAWSUITS , ALL ALL EGE ING, IN PART , NEGLIGENT DISTRIBUTION , NEGLIGENT MANUFACTURING , NEGLIGENT MARKETING, i.e . CLAIMS UNRE LATED TO ANY CLAIM OF DEFECT IN THE PRODUCT , CLAIMS THAT WERE NOT PRODUCTS LIABILITY CLAIMS ARE EX-CLUEDED UN DE R FLORIDA LAW UNDER EXCLUDED UNDER FLORIDA LAW UNDER THE PR ODUCTS HAZARD EXCLUSION.

LET ME ASK YOU AN INI TIALQUESTION AB OUT THE CA USE OF ACTION SO.YOU WOULD AGREE IF THE NEGATIVES AND THE WA RNING ING AND MARKETING AL SO WAS T IED INTO WHAT WE CONSIDER A PRODUCT DEFECT , SOME THING WRONG WITH THE GUN, THAT EVEN THOUGH THE MARKETING OR THE FAILURE TO WARN , OCCURRED BEFORE THE PRODUCT LEFT THE PREMISES , IT WO ULD BE COVERED UNDER THIS O R ITWOULD BE EXCLUDED?

YES, YOUR HO NOR , THAT IS CORRECT. BOTH ST RICT LIAB ILITY OR NEGLIGENCE CL AIMS THAT SOUND IN PRODUCTS LIABILITY , WE AGREE , WOULD FALL WITHIN THE EXCLUSION, AND IN THAT REGARD THE AMI CUS B RIEF THAT FOLLOWS THE INCLUSION , MISINTERPRETS OUR ARG UMENT THAT ANY CLAIM OF NEG LIGENCE IS NOT CO VERED. THA T IS CO RRECT . I THINK THE EXAM PLE IS THE GASKINS CASE, ONE OF THE EARLIEST CA SES ON THE EXCLUSION, HELD THAT IT WAS A NEGLIGENCE CLAIM UNR ELATED TO A DEFECT IN THE PRODUCT AND THEREFORE WAS NOT WITHIN THE EXCLUSION, AND THE SUBJECT FLORIDA COURT CASE AND OTHER CASES WITHIN JURISDICTIONS

THE WO RD DEFE CT IN THE PRODUCT IS NOT US ED IN THE EXCLUSION , IS IT?

CORRECT, YOUR HONOR, EXCEPT THAT THE EXCLUSION

THE CON CLUSION SA YS ARISING OUT OF A PRODUCT, CORRECT?

CORRECT.

OKAY. AND SO WE START FROM THE PROPOSITION, DON'T WE , THAT WHAT HAPPENED , WHAT IS BEING ALLEGED HERE , IS , ARE INJURIES AND DAMA GES AR ISING OUT OF THE USE OF A WEAPON . ISN'T THAT RIGHT? OF A GUN.

THERE IS NO DISPUTE , THE ALLEGATIONS ARE THAT PE OPLE WERE INJURED, BASED ON THE USE OF THE GUNS. THAT IS CORRECT.

SO ARISING OUT OF THE USEOF THE GUN. I ME AN, THAT IS THE WAY T HIS CAUSE OF ACTION WORKS RI GH T ?

IF I UNDERSTAND YOUR QUESTION, THE CAUSE OF ACTIONS ARE BASED ON USES O F THE GUN. THAT IS CORRECT .

ARE YOU NOT WI LLING TO USE THE WORD ARIS ING OUT OF? IS THERE SOME RE ASON T HAT YOU DON'T USE THAT WORD , OTHER THAN THE FACT THAT I T IS IN THE POLICY. I MEAN, IS THERE , DOES - ARISING OUT OF" PLAY A KEY R OLE, I N TRYING TO FIG URE OUT WHAT THIS POLICY IS INT ENDED TO EXCLUDE?

IT OBVIOUSLY PLAYS A K EYROLE, YOUR HONOR , AND I THINK TWO POINTS ABOUT THAT. WE ARE NOT RELYING ON AN ARGUMENT. OUR MAIN ARGUMENT IS NOT THAT THE PRO VISION IS AMBIGUOUS.I THINK THERE IS AN ARGUMENT TO THAT EF FECT BUT THAT IS NOT OUR MAIN ARGUMENT , AND IN FACT , THE GASKINS CASE AND THE MAJORITY OF C ASESFROM OTHER JURIS DICTIONS THAT HAVE INTERP RETED THE EXCLUSION ONLY TO APP LY TO PRODUCTS LIAB ILITY , SHORTHAND PRODUCT DEFEC TIVE CLAIMS, HAVE NOT RELIED ON THE AMBIGUITY DOCT RINE . IN FACT , GA SKINS HEL D THAT THE PROVISION WAS CLEAR, A NDI WOULD POINT OUT I THINK YOU CAN GET THAT JUST FROM THE TITLE, THE T I TLE OF THE PROVISION , IS YOUR PRODUCTS HAZARD EXCLUSION, i .e. PRODUCTS HAZA RDOUS EXCLUSION. IT HAS AL WAYS BEEN INTENDED TO COVER PRODUCTS LIABILITYCLAIMS, AND ONE OF THE REASONS COURTS HAVE JUMPED , MANY COURTS , WITHOUT SIGNIFICANT ANALYSIS, A NDREACHED THE CONC LUSION READILY, THAT THE EXCLUSION ONLY APPL IES TO PRODUCTS LIABILITY OR DEFECTIVE PRODUCT CLAIMS , IS B E CAUSE THE GENESIS OF THE COVE RAGE AND THE GENESIS OF THE EXCLUSION, WAS TO APPLY TO PRODUCTS LIABIL ITY.

CAN YOU EXPLAIN O R ADDRESS OUR DEC ISION I N QUAKOS? BECAUSE APPARE NTLY THE FEDERAL DIST RICT COURT THOUGHT IT MADE ALL THE DIFFERENCE IN THIS CASE LITERALLY.HE HELD IN YOUR FAVOR BEFORE THAT , AND A FTER CONSID ERING QUAKOS, HE HELD AGAINST YOU, SO TO HIM IT MADE ALL THE DIFFERENCE, SO CAN YOU ADDRESS THAT CASE AND WH Y IT DOESN'T APPLY?

YE S, YOUR HONOR. I THINK THE ANALYSIS Q UAKOS ACTUALLY SUPPORTS O URPOSITION, BECAU SE YOUR HONORS ARE OBVI OUSLY PREPARED THAN I AM , T O EXPLAIN WHAT THE OP INION MEANT BU RKES READING IT, THE COURT, FROM THE VERY FI RST DISCUSSION, BEGINNING WITH THE CITATION OF C TC , INTERPRETED THE POLICY IN FAVOR OF THE INSURED , BECAUSE ACCIDENT AND OCCURRENCE WERE UNDEFI NED , AND IT WAS NOT , AS THE INSURER S CONTEND, A RULING THAT, BASED ON THE PLAIN , UNAMBIGUOUS LANGUAGE OF THIS POLICY, WE ARE FI NDING UNDER THE INSURERS. THE THAT, THE ARGUMENT B Y THE INSURERS THAT THEY HAVE MADE TO THE DIST RICT COURT AND MADE TO THIS COURT IS, TO ME, CONT RARY TO T HELANGUAGE OF THE OP INION. THE OTHER THIN G THE COURT DID IN

THE WAY THE DISTRIC T COURT INTERPRETED QU AKOS , IT SAID THAT QUAKOS WAS THE SHOOTING THAT GAVE RISE TO THE INJURIES AND NOT THE NEGLIGENT FAIL URE TO PROVIDE SECURITY, AND THAT IS W HAT LED THE DISTRICT COURT TO SAY, EVEN THOU GH IT WAS CONCERNED WITH THE DEFINITION OF OCCURRENCE , IT WAS CONC ERNED THAT THE SHOOTING GAVE RISE TO THE INJURIES NOT THE NEGLIGENCE OF THE OW NER OF THE PREMISES.

THAT'S CORRECT.

IT HAS CLEARED U P THE FLORIDA LAW , AND INDICATESTHAT THIS WOULD ARISE OUT OF THE GUNS , THEMSELVES , NOT OUT OF THE ON-PREMISE NEGLIGENCE.

THAT'S CORRECT, BU T AS I READ THE DECISION , HOW THIS COURT GOT THERE WAS HOLDING REPEATEDLY, THAT, AND BEFORE , EVEN BEFORE THIS COURT HELD THAT THE PROVISION WAS AMBIGUOUS , THAT THE PROVISION COULD BE INT ERPRETED IN DIFFE RENT WAY S AND WAS GOING TO BE INTERPRETED IN FAVOR OF T HEINSURED , AND THE OTHER THING THE COURT DID THAT I THINK IS SIGNIFICAN T IN RE GARD TO QUAKOS IS THE COURT LOO KED AT THE PURPOSE IN DRA FTING OF SOME OF THE RELE VANT CLAUSES , PARTICULAR LY IN THAT CASE THE CONTINUES EXPOSURE CLAUSE WH ICH THE COURT FOUND WAS INTENDED TO BROADEN COVERAGE , AND I N THIS CASE I DON'T T HINKTHERE IS ANY SE RIOUS DISPUTETHAT THE INTENT OF THE PROD YOU CAN'T HAAS PRODUCTS HAZARD EXCLUSION AND THE MERIT TO THE PRODUCTS HAZARD COVERAGE IS RELATED TO THE INTENT OF THE PRODUCT HAZARD CLAIMS. IN FACT, THE COVERAGE , UNDER THE PRODUCT HAZARD EXCLUSION , QUOTE , COVERAGE WILL B E PRECLUDE, ONLY WHEN THERE IS A DEFE RKT I HAVE CONDITI ONIN THE PROD A DEFECTIVE CONDITION IN THE PRODUCT , ITSELF.

WHAT IS CJ S?

CORPUS JURIS , YOUR HONOR.

I WOULD THINK THAT T HEY WOULD HAVE TO BE CITING SOME CASES.JUST GOING BACK T O YOU ARE TALKING ABOUT THE POLICY OF THE POLICY, CLEA RLY , MANUFACTURERS HAVE PRODUCTS LIABILITY COVERAGE . I MEAN, I WOULD ASSU ME THAT THAT IS PART OF THEIR , W HAT THEY GET.WHAT IS NORMALLY COVERED , THIS IS SORT OF, IT SE EMS AS A SOMEWHAT UNUS UAL CLAIM , BUT WHAT IS REALLY CONTEMPLATED FROM TAUR US'S POINT OF VIEW WITHIN T HIS TYPE OF COVERAGE , THAT YOU ARE SEE KING TO BENEFIT O F HERE? WHAT WOULD BE OTHER T YPE O F CLAIMS THAT WOULD BE WITHIN THIS, THE COVERAGE?

THAT IS A GOOD QUESTION , YOUR HONOR, AND THAT IS ONE OF THE POLICY REASONS WHY WE THINK THE EXCLUSION S HOULD BE LIMITED TO PRODUCTS LIABILITY CLAIMS, BECAUSE A S WE HAVE C RIED , INSURANCE TREATIESES AND WE HAVE CITED COUCH ON INSURANCE, HOLDS THAT PRODUCTS LIABILITY COVERAGE ONLY APPL IES TO DEFECTIVE PRODUCT CLAIMS, AND, IN FACT, SOME OF THE COURTS FROM OTHER JURISDICTIONS WHO HAVE ADOPTED THE PRIN CIPLE WHICH IS A PRINCIPLE O F LONG STANDING WE ARE ADVOCATING , HAVE DONE SO , IN P ART ON THE BASIS THAT THEY WANT TO , THEY DON'T WANT TO HAVE A GAP IN COVERAGE. THEY WANT TO INTERP RET THE EXCLUSION CONSISTENTLY WITH THE COVERAGE PROVISION, A ND THE BUCKEYE COURT IN OHI O , THE MORE HEAD DECI SION IN PENNSYLVANIA, AND OTHER CASES HAVE SAID THAT PRODUCTS HAZARD COVERAGE COVERS IF THERE IS A DEFECTIVE PRODUCT O R PRODUCTS LIABILITY, NOT IF THERE IS AN ALLEGATION OF NEGLIGENCE THAT DOESN'T DEAL WITH AN ALLE GATION OF DEFECT IN THE PRODUCT . THE MIR ROR I MAGE IS THE PRODUCTS HAZARD EXCLUSION SHOULD ONLY APPLY IF T HEREIS A DEFECT IN THE PRODUCT. OTHERWISE , YOU WILL HAVE A SITUATION WHERE THE PRODUCTS HAZARD COVERAGE WON'T APPLY BECAUSE IT LIES IN THIS CASE , THERE ARE ALLEGATIONS AND LIKE IN GA SKINS , YOUR ALLEGATIONS OF NEGL IGENCE AREN'T BASED ON AN ALLEGATION OF A DEFECT INTHE PRODUCT.

IS THAT WHAT IT IS C A LLED , PRODUCTS HAZARDOUS COVERAGE? THIS IS, YOU SAY THAT IT MIRRORS THE EXCLUSION THAT THERE IS SOMETHING , SORT OF WITH AUTOMOBILE AND PREM ISE , THAT THERE SHOU LDN'T BE A GAP.

YES, YOUR HONOR.

IS THE ST ANDARD COVERAGE FOR PRODUCTS LIABILITY CALLED PRODUCTS HAZARDOUS COVERAGE?

YES , YOUR HONOR. I THINK SOME MAY RE FER T O IT AS PRODUCTS LIABILITY BUT I THINK IT IS GENE RALLY REFERRED TO AS PRODUCTS HAZARD COVERAGE.

TO GET TO YOUR POINT IN THIS, I BE LIEVE YOU STARTED OUT , PART OF YOUR ARGUMENT, SAYING THAT YOUR ARGUMENT ISN'T REALLY ABOUT WHETHER THIS EXCLUSION IS AM BIGUOUS OR NOT. DID I HE AR YOU CORRECTLY?

YES , YOUR HONOR.

SO IF IT ISN'T AMBIGUOUS , THEN IT CO MES BACK TO , I THINK, THE POINT THAT JUSTICE WELLS WAS TRYING TO MAKE, IS WHAT DOES THIS ARISE IN G OUT OF LA NGUAGE MEAN? IT SEEMS TO ME THAT WE WOULD HAVE TO GET T O A POINT , TO SAY THAT THAT LANG UAGE I S AMBIGUOUS , BEFO RE WE CAN MAKE A R ULING THAT THIS EXCLUDES ONLY WHAT YOU PURPORT TO SAY IT EXCLUDES . I AM NOT SURE HO W WE GET TO THAT, WITHOUT SAY ING THAT THIS IS AMBI GUOUS , THIS IS AN AMBIGUOUS PROVISION. SO IF YOU COULD EX PLAIN THAT TO ME. WHY ISN'T THIS AMBIGUOUS , AND IF IT IS NOT , HOW DO WE GET TO THE POINT OF SAYING IT ONLY APPLIES TO A PRODUCT DEFECT?

TWO THINGS, YOUR HONOR . BEGINNING WITH THE TIT LE THAT IT IS PRODUCTS HAZARD EXCLUSION.

I UNDERSTAND THAT. THAT IS WHAT THE TITLE OF IT IS.

AND FROM THE START , IF YOU LO OK AT THE INTERPRETTATION REASONING OF THE EXCLUSION, IT WAS T O COVER PRODUCTS HAZARD CLAIMS. ONE CASE I WOULD LIKE TO CITE TO THE COURT , I DON'T KNOW IF IT HAS BEEN BRIEFED , IS A FLOR IDA FIRST DISTR ICT DECISION, MILLER ELECTRIC.

IS THIS SOMETHING THAT IS IN YOUR BRIEF?

I DON'T BELIEVE IT IS, YOUR HONOR.

THEN YOU REALLY CAN NOT ARGUE IT. YOU CAN SUB MIT IT AS SUPPLEMENTAL AUTH ORITY.

BUT I DO THINK THERE IS AN ARGUMENT OF AMBIGUITY , IN THAT ARISE ING OUT OF CAN B E RECOGNIZED TO , AND HAS BEEN RECOGNIZED AND SOME COURTS HAVE HELD IT IS AMBIGUOUS AND HAS DIFFERENT MEEPTION. I THINK IT IS UNDEFI NED. I THINK IT IS SUBJECT TO DIFFERING INTERPRETATIONS FOLLOWING THIS COURT'S ANALYSIS IN QUA KOS, AND I KNOW THAT, IN THE AUTO COVERAGE AREA, IT HAS BEEN REPEATEDLY HELD TO BE UNAMBIGUOUS, BUT WHEN YOU LOOK AT THE DEFINI TION OF THE HA GAN L I NE OF CASES , THE COURTS HAVE SAID IN FLORIDA THAT IT CAN MEAN ORIGIN ATING ALL THE WAY FROM HAVING ANY RELATIONSHIP, ANY CONNECTION WITH , WELL , T O ME TH OSE TWO DEFINITIONS ARE DIFFERENT AND HAS PARTICULAR APPLICATION IN THIS CASE , AND UNDER THE ALLEGATION OF NEGLIGENCE UNDER OUR PRE MISE , NEGLIGENT DISTRI BUTION , NEGLIGENT MARKETING , THE ORIGINAL CAUSE OF OUR PROVISION WAS NEGLIGENT DISTRIBUTION, NEGLIGENT ET CETERA.

WE HAVE SOME LANGUAGE THAT IS BRO ADER AND SOME THAT IS DIFFERENT. DOESN'T THE - ARISE ING OUT OF" FALL ON THE END OF THE SCALE AS BEING V ERY BROAD IN T ERMS OF CONN ECTION. HELP ME WITH THAT, THAT IS AS OP POSED TO A NAR ROW PHRASE, OKAY , DOESN'T THIS FALL IN T ERMS OF OUR INTERPRETATION IN A VERY BROAD AREA?

I AGR EE IT HAS BEEN PRIMARILY IN THE AUTO COVERAGE CASES. AGAIN, I WOULD SUBMIT ONE REASON IN THE CASES THAT HAS BEEN EXPLICIT I S ALSO FOR THOSE HOLD INGS IS TO MAKE AUTO COVERAGE AND AUTO EXCLUSIONS CONSISTENT . AND THAT POLICY RATIONALE HERE, WOULD CALL FOR INTERPRETING "ARISING OUT OF" MORE NARROWLY , BUT I DO THINK THAT WHEN YOU LOOK AT HOW THE COURTS HAVE FOUND IT, THE DECISIONS THE MSELVES TALK ABOUT TWO DIF FERENTMEANINGS TO THE PROVISIO N. THE

L ET'S , IF WE DON'T HAVE IN FRONT OF US THE OTHER P OLICY , NOW , THAT WOULD TAKE AWAY FROM YOUR ARGUMENT THAT THIS IS NOT, THAT IT IS UNAMBIGUOUS.IN OTHER WORDS, IF WE HAD A REFERENCE OF AN OTHER POLICY , THAT WOULD MEAN THAT SOMEHOW WE COULDN'T FI GURE OUT FROM JUST READING THE EXCLUSION , WHAT IT REFERRED TO. AND SO I GU ESS GOING BACK TO IF YOU READ THE P LAINLANGUAGE OF THIS , I T IS SIMPLY, IT IS, IT IS CALL ED A PRODUCTS COM PLETED OPERATIONS HAZARD EXCLUSION OR PROVISION, AND IT IS INTENDED TO EXCLUDE ALL BODILY INJURY OCCURRING AWAY FROM YOUR PREMISE AND ARISING OUT OF YOUR PRODUCT. EXCEPT THAT IF THE PRODUCTS ARE STILL IN YOUR PHYSICAL POSSESSION, SO IT IS, Y OUKNOW, I GUESS MA YBE GETTING , MAYBE THE P URPOSE, SAYING THAT COURTS HAVE MADE A DISTINCTION THAT IT HAD TO BE A DEFECTIVE , IF IT WAS A DER EFFE CTIVE PRODUCT , BUT IT IS NOT IN THIS PLAIN LANGUAGE OF THIS EXCLUSION. COULD YOU TELL ME WHERE YOU G O TO FIND THE INTERPRETATION WITHIN THE PROVISION THAT YOU ARE SEEKING TO AD VANCE HERE ?

AGAIN, I WOULD START WITH THE TITLE, YOUR HONOR , THE PRODUCTS HAZARD EXCLUSION. IT IS ONLY EXCLUDING PRODUCTS HAZARDS . SOMETHING IN THE PRODUCT THAT CREATE S A HAZARD , NOT COVERING

IT DOESN'T , WHE N YOU G ETTO THE DEFINITION , A LO T O F THESE CASES, WE HAVE HAD TO WORRY ABOUT , HAVE NOT HAD DEFINITION, SO WE HAVE HAD TO WORK TO SU PPLY A DEFINITION. BUT HERE IS ONE THAT G IVES A DEFINITION.

WELL , EXCEPT IT DOESN'T DEFINE " ARISING OUT OF" AGAIN. IT IS IN THE DEFINITION.

SO NOW WE S HOULD A L WAYS BE INTERPRETING AS ARISE IN G OUT OF? IS THAT THE KEY HERE IS HOW YOU INTERPRET ARISING O UTOF?

I SUBMIT IT IS NOT THE ONLY KEY. IT IS OBVIOUSLY IMPORTANT. I THINK THERE IS A NOTHER IMPORTANT PART OF THE PROVISIONS THAT SOME OF THESE POLICIES AS IS STATED IN THE INSURER S BRI EF ON PAGE 7, STATE THAT THE DEFINITION INCLUDES WARRANTIES , I DON 'T HAVE THE EXACT LANGUAGE , WARR ANTIES , ET CETERA.

IF YOU HAVE TO G O SOMEPLACE ELSE, THEN THAT TELLS ME THAT THERE IS A AMBIGUITY, AND I GUESS WE TAKE YOUR CON SE SSION , WHIC H IS THERE ISN'T AN AMBIGU ITY. ONCE THERE ISN'T, THEN IT IS , ONCE YOU , TO REFER TO OTHER DOCUMENTS, MEANS THAT THERE IS SOMETHING THAT WE CANNOT DECIPHER FROM READING JUST WHAT IS SET FORTH IN THE POLICY.

WELL, AGAIN, LET ME BE CLEAR WITH OUR ARGUMENT. I DO THINK THERE IS AN ARGUMENT, THERE IS AN AMBIGUITY THERE.AT LEAST THERE THE IS A N UNDEFINED TE RM SUB JECT T O DIFFERING INTERPRETATIONS AS WITH THE ACC IDENT IN QUAKOS , BUT , A GAIN, WHEN THIS IS THE MAJORITY RULE OF THE COURTS THAT HAVE INTERPRETED THIS EXCLUSION, HAVE NOT GONE ON THE, MOST OF THEM HAVE N OTGONE ON THE B ASIS OF AMBIGUITY.

I GUESS IT DEPENDS ON HOW YOU DEFINE MAJO RITY RULE , RIGHT? BECAUSE THE COURTS THAT HAVE INTERPRETED THE EXCLUSION UNDER THESE PARTICULAR CIRCUMSTANCES , AND THERE HAVE BEEN T H RE E , THEY ARE U P AND IN MUST AGAINST YOU.

CORR ECT.CORRECT.

I GUESS IT DEPENDS ON HOW YOU DEFINE THE MAJ ORITY OF COURTS.

CORRECT. BUT THE DECISION S IN THE OTHER JURISDICTIONS, ALSO , DEAL WITH HAND GUN SA LES , MANUFACTURE, GUNPOW DER , ET CETERA, AND I THINK THOSE THREE CASES CAN B E DISTINGUISHED.

YOU ARE IN YOUR RE BUTTAL, BUT BEFORE YOU SIT DO WN LET ME ASK YOU, BOTH S IDES ARE CONCENTRATING ON ARISING OUT OF YOUR PRODUCT , BUT AT LEAST IN SOME O F THESE POLICIES THERE IS AN ADDITIONAL PH RASE "OR YOUR WORK". DOESN'T THAT MAKE IT E VEN BROADER? IF IT DOESN'T ARISE OUT OF YOUR PRODUCT, IT CERTAINLY ARISES OUT OF W H AT YOU H AVE DONE, YOUR MARKET ING , YOUR WORK. WHY HAVEN'T YOU ADDRESSED THAT PHRASE?

THE INSURERS HAVE NOT CLAIMED THAT PHRA SE IS THE BASIS FOR THE EXCLUSION , BUT I THINK THE SAME AGAIN RA L PRINCIPLES WOULD APPL Y. VERY THE SAME GEN ERAL PRINCIPLES WOULD APPLY. VERY BRIE FLY , I WILL TRY T O SAVE ONE MINUTE FOR REB UTTAL , BUT TO GO BA CK TO THE C HIEF JUSTICE'S QU ESTION. INCLUDING ANY WARRANTY ABOUT USE , ET CETERA , WELL , IF THE PROVISION ABOUT ARISING OUT OF YOUR PRODUCT MEANS AS BROADLY AS THE INSURER SUBMITTED, ARGUED MEANS, THAT RE NDERS THE LANGUAGE SUPERFLUOUS.I WOULD ALSO SUBMIT, W HEN YOU ARE TAL KING ABOUT THE MANUFACTURE AND S ALE AFTER PRODUCT AS OPPOSED TO A MANUFACTURER AND SE LLER WHO USES AN AUTOMO BILE INCIDENTALLY IN THE BUSINESS, YOU R ISK SWALLOWING THE WHOLE COMMERCIAL GENERALLIABILITY COVERAGE, IF Y OUINTERPRET THAT ANYTHING THAT RECEIPTS IN THAT RELATES IN ANY WA Y TO THE PRODUCT IS EXCLUDED, THEN YOU RISK SWALLOWING THE CGO COVERAGE, AND THAT IS WHY , ANO THERREASON WHY SOME OF THESE COURTS HAVE INTERPRETED IT AS THEY HAVE.

CHIEF JUSTICE: THANK YOU.

GO OD MORNIN GS YOUR HONO RS. MAY IT PLEASE THE COURT. MY NAME IS JOHN CONSTINE. I REPRE SENT FEDERAL INSURANCE COMPANY, AND I AM ALSO SPEAKING ON BEHALF THE OTHER NOMI NA L DEFENDANTS, I GUESS IN THE PO SITION OF APPELLEES IN THIS CASE .

CHIEF JUSTIC E: JUST ICE LEWIS .

MR. CONS TINE , ONE OF THE ARGUMENT THAT YOUR OPPOSITION AD VANCES , THAT HAS SOME ATTRACTI VENESS T O IT, IS THIS CONCE PT OF GA PS . AND CERTAINLY WE NEED TO HAVE A PRACTICAL APPL ICATION , AND AS YOU ARE AWARE AN D WE ARE ALL AWARE THAT ARISINGOUT OF IS LIKE THE TERM RELATIVE, LIKE ANYTHING INTHE UNIVERSE CAN BE RE LATIVE IN OR RELATED TO IN A CERTAIN AS PECT . BUT WOULD YOU ADD RESS FROM YOUR PERSPECTIVE, DO T HESEKINDS OF THIN GS, HOW DO THESE PROVISIONS MEASURE, BECAUSE WE ARE DE ALING WITH PRODUCT, COMP LETED OPERATIONS AND ALL OF THESE THINGS, KIND OF BEC OME INVOLVED, SO WOULD Y OURESPOND TO THAT AND EX PLAIN TO US WHY, THE WHY'S O F IT NOT JUST LANGUAGE BUT WHY , HOW THIS ALL FITS TOGETHER.

I WOULD BE HA PPY, TO YOURHONOR, AND IN FACT , COINCIDENTALLY, YOU HAVE TOUCHED UPON THE VE RY F IRSTPOINT THAT I WANTED TO MAK E.

I GUESS I AM INTUI TIVE , THEN, HU H?

AND THAT IS BECAUSE, AS CHIEF JUSTICE PAR IENTE MENTIONED, O R ASKED ABOUT , DO WE HAVE THAT K IND AFTER POLICY IN FRO NT OF US? WELL, ACTUALLY WE DO HAVE THAT KIND OF POLICY IN F RONTOF US. IT IS THE SAME POLICY AT ISSUE IN THIS CASE , BECAUSE THIS POLICY HAS A PROVISION , ALL OF THE POLICIES , I BELIEVE, BUT CERTAINLY SOME OF THE POLICI ES THAT A REBEFORE THE COURT, HAVE A PROVISION THAT SAYS YOU CAN PURCHASE PRODUCTS COMPL ETED OPERATIONS HAZARD. IF YOU LOOK A T , AND I APOLOGIZE THE COURT CAN'T S EE, BUT ON THE DECLARATIO NS P AGE OF THE COMMER CIAL GENERAL LIABILITY POLICY, THERE ARE LI STS OF LI MITS OF INS URANCE, AND THERE ARE LIMITS FOR GENERAL AGGREGATE LIMIT. IT SAYS "OTHER THAN PRODUCTS COMPLETED OPERATIONS."

I THINK YOU CAN AS SUME THAT WE UNDERSTAND T HAT THERE ARE TWO DIFF ERENT COVERAGES , THAT IT CAN B E PURCHASED. WHAT WE ARE GOING TO, IS HOW DO THEY MEASURE TO GETHER? HOW DO THEY ME RB TOGETHER?

THEY DOVE TAIL PRECISELY , BECAUSE AT THIS POLICY IN ISSUE, FOR EXAMPLE , ALLOWS YOU TO PURCHASE OR NOT PURCHASE PRODUCTS COMPLETION LIABILITY COVERAGE. HAD THEY P URCHASED THAT COVERAG E, THEY WOULD HAVE COVERAGE FOR THESE CLAIMS.

WHY IS THAT?

BECAUSE THEY FALL WITHIN THE DEFINITION OF PRODUCTS COMPLETED OPE RATIONS .

WH AT IS THE STANDA RD DEFINITION?

THE DEFINITION , AS SET FORTH IN THE POLICY , IS BODILY IN JURY ARISING FROM YOUR PRO DUCT. I THINK IT IS , ALSO INCLUDES OFF PREMISE AND THERE ARE SOME QUALIFICAT IONS.

THE COVERAGE MAT CHS THE EXCLUSION.

THAT'S RIGHT. THE COVERAGE MATCHES THE EXCLUSION.THE COVERAGE IS THE EXCLUSION. IN OTHER WORDS, THERE IS A DEFINITION , A PROVISION , OF PRODUCTS COMPLETED OPERATIONS. IT IS THE SAME WHE THER IT IS COVERAGE OR COVERAGE EXCLUSION, AND THEN THE POLICY SAYS IF YOU BUY PRODUCTS COMPLETION COVERAGE , YOU HAVE THAT COVERAGE.

IS THAT A SEPA RATE POLICY? IT IS SEP ARATE FROM W HAT WOULD BE CA LLED PRODUCTS LIABILITY COVERAGE , OR THISIS WHAT IT IS CALLED? THIS IS A GUN MAN UFACTURER THAT I WOULD ASS UME WANTS, IN THIS DAY AND AGE , INSURANCE COVERAGE .

RIGHT.

SO WHEN THEY SAY , LISTEN , I WANT TO BE PROTECTED OUT OF, YOU K NOW , IF SOMEONE GOES HOME OR I GET SUED BECAUSE OF MY GUN , DO THEY BUY PRODUCTS COMPLETION HAZARDOUS COVERAGE , OR D O THEY HAVE TO WORRY A BOUTWHETHER IT IS A DEFECT IN THE PRODUCT OR A MARKE TING CLAIM? THIS COVERS

THEY DON'T HAVE TO WORRYABOUT THAT AT ALL , YOUR HONOR. THERE ARE TWO-WA YS TO G O ABOUT I T.THEY CAN BUY A POLICY THAT POTENTIALLY COVERS EVERYTHING AND THEN THEY CAN CHOOSE THE DIFFERENT COVERAGES OUT OF THE POLICY THAT THEY WANT, SO IN THIS CASE FOR E X AMPLE THE POLICY POTENTIALLY COULD PROVIDE PRODUCTS COMPLETED OPERATIONS COVERAGE IF YOU BUY THAT COVERAGE , IF YOU PAY PREMIUM FOR IT AND THEY SET A LIMIT FOR IT. I BELIEVE YOU CAN ALSO GO OUT AND BUY A SEPARATE POLICY THAT WOULD ALSO COVER THE SAME HAZARD , WITHOUT ALL OF THE OTHER BEL LS AND WHISTLES, WITHOUT THE GENERAL LIABILITY COVERAGE.IN OTHER WORDS, YOU COULD BUY, AND I BEL IEVE IN THIS POLICY, YOU COULD JUST BUY THE PRODUCTS COMPLETED OPERATIONS IF YOU WANTED TO.

LET ME DIRECT YOU TO WHAT HAS BEEN ARGUED IN THIS CASE.

YES, SIR.

AND HOW DO YOU DEAL WITH THE GASKINS FA CTUAL SITUATION , IN THAT, THAT SEEMS TO ME, TO BE A PERFECTLY REASONABLE SITUATION , IS WHERE SOMEBODY COMES IN AND THE CLERK GIVES THEM THE WR ON G PRODUCT , THAT THIS EXCLUSION IS, REA LLY, NOT INTENDED TO COVER T HAT TYPE OF S ITUATION, OR IS IT?

WELL , I AC TUALLY THINK IT IS INTENDED TO COVER T HAT TYPE OF SI TUATION, AND I THINK THAT THERE HAS BEEN SOME DISCUSSION OF WHAT IS A MAJORITY AND WHAT IS N'T A MAJORITY. THERE IS A SPLIT OF AUTHORITY ON THE GENERAL QUESTION OF WHETHER THIS TYPE OF EXCLUSION SHO ULD B E INTERPRETED , B ASED ON ITS EXPLICIT LANGUAGE, AND THEREFORE NOT LIMIT ED TO MERELY DEFECTIVE PRODUCT CLAIMS BUT ALL PRODUCT CLAIMS, WHICH IS WHAT I T SAYS, OR WH ETHER IT S HOULD BE, THE COURT SH OULD JUDICIALLY REW RITE IT AND LIMIT IT , BASED ON THE INTENT. THERE IS A SPLIT O F AUTHORITY.I THINK THAT THE CASES THAT FOLLOW THE RULE THAT YOU APPLY THE LANGUAGE AS WRITTEN , ARE FAR M OR E CONSISTENT WITH THE APPROACH THAT THIS COURT HAS USED IN FLORIDA, AND I THINK THE CORRECT APPROACH IN INTERPRETING INSURANCE POLICIES, BUT THERE ARE OTHER POINTS TO BE MADE , WITH RE GARD TO GASKINS. I MEAN, THIS COURT DOESN 'T, THIS COURT, COULD AND I THINK SHOULD, IF IT FELT THAT IT HAD TO REACH THE ISSUE, FIND THAT GASKINS WAS SIMPLY WRONG, BUT IT DOESN'T NEED TO. GASKINS , FIRST OF ALL , INVOLVED DIFFERENT POLICY LANGUAGE, AS FAR AS WE C ANTELL FROM THE OPIN ION. THE POLICY LANGUAGE IN THIS CASE, SAYS WE DO NOT COVER CLAIMS , BASED ON CLAIMS FOR INJURY ARISE ING OUT OF A PRODUCT. THEREFORE WHAT YOU LOOK A T IS THE CONNECTION BETWEENTHE INJURY, THE B ODILY INJURY, BECAUSE KE EP IN M IND AS HAS NEVER BEEN IN DISPUTE , THE BO DRY INJURY AT IS SUE THE BODILY INJURY AT ISSUE , THIS POLL LY ONLY COVERS BOD THIS POLICY ONLY COVERS BODILY INJURY OR PROPERTY DAMAGE, BUT I DON'T THINK THERE IS ANY ISSU E AS TO THAT, AS TO THE PROPERTY DAMAGE, SO THIS COVERAGE COVERS BODILY INJURY ONLY , SO YOU HAVE TO SAY THAT THE SUBSET ISSUES MAY NOT INCLUDE BODILY INJURY, AND THEN YOU LOO K AT THE EXCLUSION AND SAY , THE EXCLUSION SAYS WE DON'T COVER CLAIMS ARISING OU T OF THE PRODUCT , AND YOU HAVE TO LOOK AT THE GUN , AND THE GUN SHOT INJURY, AND THEN YOU SAY DO THESE INJURIES ARISE OR ARE THEY CAUSED BY GUN S?

ITYMI ZING OUT THE DIFFERENT LAWSUITS , NUM BER FOUR ITEM IZING ONE FROM SAN FRANCISCO , AND TH OSE ARE PUBLIC NUISANCE, UNT RUE AND MISLEADING STATEMENTS IN ADVERTISING , INAC CURATE , AND FRAUDULENT BUSINESS PRACTICES.THOSE ARE THE CAUSE OF ACTION THAT THE JU DGE L ISTSHERE. WHICH DIRECTLY DEALS WITH BODILY INJURY CAUSED BY THE SHOOTING OF A GUN?

OUR PO SITION , ONE OF THE POSITIONS THAT WE HAVE TAKEN AND WE DON'T CONCEDE THAT , PERHAPS, NO NE OF THEM REALLY INVOLVE BODILY INJURY AT ALL BECAUSE THEY ULTIM ATELY S E EK ECONOMIC LOSS, AND TO THE EXTENT THAT IS THE CASE , THERE IS NO COVERAGE WHATSOEVER, AND THAT IS CRITICALLY IMPORTANT. THEY EITHER INVO LVE BODILY INJURY OR, IF THEY DON'T , THERE IS NO COVERAGE IN THE FIRST PLACE.WE HAVE ASS UMED, FOR PURPOSES OF THIS APPEAL , THAT THERE IS SOME ALLEGATION OF BODILY INJURY, AND IF YOU MAKE THAT ASSUMPTION, I THINK THEIR ARGUMENT HAD BEEN THAT, BECAUSE INDIVIDUALS WERE SHOT WITH GUNS , THEY INCURRED BODILY INJURY , A NDI THINK NUISANCE , I THINK ACTUALLY MOST OF THOSE CLAIMS, ACCO RDING TO TAURUS , AT L EAST IN PART , INVOLVE A BODILY INJURY , BECAUSE EITHER THE GUNS WERE FLOODED UNDER THE MAR KET , RESU LTING IN PE OPLE BEING SHO T WITH THEM, OR THERE W ERE STATEMENTS MADE BY TA URUS ABOUT ITS GUNS , FAILURES TO WARN OR WHATEVER , THAT FALL WITHIN, POSSIBLY , UN FAIR TRADE PRACTICES , THAT RESULTED IN PE OPLE MISU SING GUNS AND GE TTING SHOT WITH GUNS, BUT FUNDAMENTALLY , THEONLY WAY COVERAGE IS TRIGGERED, IS BY THE EXISTENCE OF A PE RSON BEING SHOT WITH A GUN. IF THERE ISN'T THAT , THEN W E DON'T EVEN HAVE TO ADDRESSTHE EXCLUSION. AND THEN THE QUESTION, TO GET BACK TO YOUR QUE STION

IS THERE NO ADVERT ISING LIABILITY OR LIABLE , SLANDER? BECAUSE OR LIBE L, S LANDER , BECAUSE THAT IS PART OF THESE GENERAL COMPREHE NSIVE POLICIES IN MOST INSTA NCES .

AND IT WAS UNDISPUTED BELOW AND NEVER DISP UTED BY TAURUS THAT THOSE PROVISIONS DON'T APPLY. THE ONLY COVERAGE THAT CAN EXIST IS BODILY INJURY. I DON'T BEL IEVE , W E COULD WALK THROUGH THE ALLE GATIONS , BUT I DON'T BELIEVE THATTHERE ARE ANY ALLE GATIONS THAT WOULD FALL WITHIN THOSE DEFINITIONS.

WE ARE HERE AND TALK ABOUT COVERAGE. YOU KNOW IN FLORIDA THE DUTY TO DEFENDED HIS GREATER THAN THE D UTY TO COVER , AND WE ARE ONLY DEALING WITH DUTY TO DEFEND.

YES.

CORRECT. SO THIS , G OING BACK TO THE QUESTION OF WHAT THE , THIS WAS , THIS WAS A GENERAL LIABILITY INSURANCE POLICY .

YE S, YOUR HONO R.

FOR A MANUFACT URER , AND I DON'T KNOW IF IT SHOWS IN THE RECORD WHAT THE PREM IUM , DO WE HAVE WHAT THE PREMIUM IS IN THE RECORD?

I DON'T KNOW WHETHER THAT IS IN THE RECORD, YOUR HONOR.

WHAT DOES IT COV ER? WHAT TYPES OF CLAIMS , WOULD IT COVER?

IT WOULD COVER ANY KIND , IT WOULD COVER IN GENERAL , ACCIDENTS ON PREMI SE. IT WOULD COVER IF SOM EONE IS INJURED.

I AM SURE THERE IS A WORKERS COMPENSATION EXCLUSION.

IT WOULD APPLY TO VISITORS, IT WOULD APPLY T O BUSINESS INVITE ESE. IT WOULD APPLY T O ADVERTISERS.IT WOULD APPLY TO ANYONE WHO IS INJURED ON THE PREMISE AS A RESULT.

THE STANDARD , LIKE THEY SLIPPED AND FELL.

WELL , I THINK THAT UNDER STATES THE KIND OF COVERAGE BECAUSE THERE ARE OTHERKINDS OF ACCIDENT S THAT CAN OCCUR BUT IT WOULD CERTAINLY COVER THAT. IT ALSO COVERS OFF-PREMISES ACCIDENTS THAT DON'T INVOLVE OR DON'T ARISE OUT OF ITS PRODUCT.

THAT WOULDN'T BE AUTO ACCIDENTS.

IT WOULDN'T COVER AN A UTO ACCIDENT, BUT SAY A N EMPLOYEE IS OFF PREMIS E AND GETS INTO A FI GHT WITH SOMEONE THAT HE IS T RYING T O MAKE A DEAL WITH , AND THEREFORE

THERE IS PROB ABLY AN INTENTIONAL , YOU KNO W, ACTS.

ON A D U TY TO DEF END , THERE WOULD BE COVERAGE , THOUGH, BECAUSE YOU COULD SAY HE IS ACTING IN SELF-DEFENSE. IT WOULDN'T NECESSARILY BE INTENTIONAL OR THAT PERSON INADVERTENTLY CAUSE SOME ONE ELSE INJURY OFF HO URS .

WITHOUT THIS EXCLUSION.

I AM SO RRY .

WITHOUT THIS EXCLUSION , WOULD THE POLICY COVER THESE TYPES OF CLAIMS?

WITHOUT THIS EXCLUSION , WITHOUT THIS EXCLUSION , YES. I MEAN , WELL , EXCEPT FOR THE BODILY INJURY ASPE CT, YOUR HONOR. I AM SORRY. THERE IS A DISPUTE ABOUT THAT, BUT ASSU MING THAT

HELP ME WITH THAT , BECAUSE ORDINARILY THAT IS WHAT EV ENING WHAT WE THINK, THAT IS WE THINK THAT WE HAVE GOT A B ROAD POLICY , USE OF THE WORD "BROAD" ADVISEDLY. BUT WE HAVE GOT A BR OAD POLICY THAT ORDINARILY COVERS PARTICULAR CHRACHLT S.

YES.

NOW, BY AN EXCLUSION , WE HAVE CH ERRY PICKE D OUT SOME OF THE CLAIMS THAT ORDINARILY WOULD BE COVERED. AND SO HELP ME A LITTLE B IT , WITH REFE RENCE TO , BECAUSE I AM NOT SURE, BASED ON YOUR EARLIER EXPL ANATION OF THE FACT THAT ALL OF THESE COVERAGES ARE AVAILABLE AND THEREFORE YOU PICK THE ONES THAT YOU WA NT AND YOU PAY FOR THEM, AND THAT THEY DIDN'T PICK THIS ONE , BECAUSE AS I SAID BE FORE , WE USUALLY ASSO CIATE EXCLUSIONS FROM A THEORY OF COVERAGE , WITHOUT THE EXCLUSION , SO I DO NEED YOU TO HELP ME WITH , IS THERE COVERAGE IN THIS CASE, IF WE TAKE A WAY THE EXCLUSION?IN OTHER WORDS, IS T HELANGUAGE OF THE POLICY IN THIS CASE , BROAD E NOUGH T O COVER THESE CLAIMS , T AKE , WITHOUT THE IR BEING AN EXCLUSION , KNO CKING THEM OUT?

AB SENT THE EXCLUSION, THERE WOULD BE COVERAGE .

AND WHAT IS THE LANGUAGE

AT LEAST ON A DEFENSEBAS IS.

WHAT IS THE LANGUAGE INTHE POLICY THAT PROVIDES THE COVERAGE?

THAT PROVIDES THE COVERAGE?

R IGHT . TO START WITH, THE COVERAGE THAT COVERS THESE CLAI MS.

WELL, YOUR HONOR, IT IS , WE WILL PAY DAM AGES IF THE INSURED BEC OMES LE GALLY OBLIGATED T O PAY BY R E ASON OF LIABILITY IMP OSED BY LAW OR INSURED UNDER CONTRACT FOR BODBLY INJURY CAUSED BY BODILY INJURY CAUSED BY OCCURRENCE, AND THEN WEAL AGREE IT IS PERS ONAL BODILY INJURY COVERAGE , WH ICH WE ALL A GREE THAT DO NOT APPLY , BUT THE CO URT HAS EXPRESSED QERNS INS ERT CASE CONCERNS IN CER TAIN CASES THAT THE EXCLUSION COVERS BROADLY TWO ISSUES , BUT I N THIS CASE THE DECLARATIONS PAGE, WHICH IS AT LE AS T THE FIRST THING AN INSURED WILL LOOK AT TO SEE WHETHER THEY ARE COVERED , SAYS COMMERCIAL LIABILITY, GENERAL AGGREGATE LIMIT OTHER THAN PRODUCTS COMPLETED OPERATIONS, SO IT IS VERY CLEAR THAT THEY ARE NOT BUYING THE PRODUCTS COVERAGE. THEN THERE IS A EXCLUSION IN THE POLICY THAT SAYS WE DO NOT COVER ANY THING WITHIN THE PRODUCTS HAZARD, AND THEN THERE IS A V ERY EXPLICIT DEFINITION THAT SAYS WE DO NOT COVER ANY PRODUCTS HAZARD INCLUDES A NYCLAIM FOR INJURY ARIS ING OUT OF YOUR PRODUCT .

CAN YOU AD DRESS THE "OR YOUR WOR K" P HRASE , BECAUSE AT LEAST SOME OF THE POLICIES HAVE THAT , YOUR PRODUCT OR YOUR WORK, AND EVERYBODY SEEMS TO BE CUTTING OFF THAT PRODUCT.

FRAN KLY , YOUR HONOR , I THINK THE REASON, MY UNDERSTANDING HAS BEEN AND IHAVE TO SAY THIS IS A ISSUE THAT HASN'T BEEN PREVIOUSLY ADDRESSED BY E ITHER S IDE, THAT THE WORK REFERS TO SITUATION WHERE A N INSURED DOESN'T PRODUCE A GOOD BUT, INSTEAD, PRODUCES WORK.

SERVICE.

A SERV ICE OR B U ILDS SOMETHING, AS OP POSED TO SELLS A GOOD OR MANUFACTURES A GOOD, AND I THINK THAT MAY BE WHY THAT WASN'T RAI SED. I WOULD CERTAINLY NOT TR Y TO ARGUE TO THE COURT THAT THAT DOESN'T, ALSO , INCLUDE THIS,BUT I THINK THAT IS WHY THAT PARTICULAR PROVISION WASN'T RAISED.

YOU ARE COMING BACK TO GASKINS.

I WAS , YOUR HONOR , AND AS I SAID, I THINK IT IS IMPORTANT, FIRST OF ALL GAS KINCE INVO LVED GASKINS INVOLVED DIFF ERENT POLICY LANGUAGE, AS FAR AS WE CAN TELL FROM THE PLOITION . ARISING OUT OF YOUR PRODUCT IS A DIFFERENT CONCEPT , A NDI THINK THE COURT COULD H AVE READ IT THAT WAY , AS DIFFERENT FROM ARISING OUT OF YOUR PRODUCT. THE DIFFER ENCE HE RE CAN B E THE GUN , AS THIS COURT FO UND IN QUAK OS. SECONDLY, THE GASKINS CASE INVOLVED A VERY DIFFERENT K IND OF FA CTUAL SI TUATION . I MEAN, THIS IS A CASE WHER E A GUN MANUFACT URER , ACCOMPANY IN THE BU SINESS O F MANUFACTURING AND DISTRIBUTING GUNS , BUYS A POLICY THAT EXPR ESSLY SAYS WE DON'T COVER ANY CLAIMS ARISING OUT OF YOUR PRODUCT, WHICH OBVIOUSLY IS YOUR GUNS. THEY ARE, THEN , SUED IN MASS TORT LITIGATION , F ORSPECIFIC, FOR INJURIES BY PEOPLE BEING SHOT WITH THEIR GUNS BECAUSE OF THEIR A PRACTICES .

THOSE ARE THE BUSINESS PRACTICES.IT IS NOT BECAUSE, AGAIN , THE GUN DIDN'T HAVE A SAF ETY OR SOMETHING THAT OF THAT NATURE.

THAT IS PART OF IT , BUT IT IS ALSO BECAUSE THEY FLOODED THE MARKET WITH GUNS IRRESPONSIBLY, AND THE DANGEROUS GUNS RESUL TED I N PEOPLE BEING SHOT. THAT IS THE UNDER LYING CASE. THE BUSINESSES P R ACTICES DON'T CAUSE INJURY.IT IS THE BUSINESS PRA CTICES THAT RESULT IN THE GUNS FLOODING THE MAR KET AND T HEN THE GUNS ARE SHOT AND PE OP LEARE INJURED AS A RESULT.

SO IF THIS SPEC IFIC , I DON'T KNOW WHAT LIT IGATION WITH THE INSURANCE IN THE TOBACCO CASES OCCURRED, B UTTHERE WAS A LOT OF CLAIMS OF FALSE AD VERTISING.

THAT'S CORRECT.

IN, AND THA T WAS THE ALLEGATION OF NEGLIGENCE, WAS THE FA LSE ADVERTISING , AND YET THE CIGARETTE CAUSE THE DEATH. IS THAT , WOULD THAT STIL L, WOULD YOU SAY THAT SOMETHINGLIKE THAT WOULD BE ALL EXCLUDED UNDER A POLICY LIKE THIS?

YOUR HONOR, THAT I S EXACTLY WHAT THE DELA WARE SUPREME COURT FOU ND. THE DELAWARE SU PREME COURT ADDRESSED THIS PRE CISE ISSUE, AND IN THE CONTE XT OF THE TOBACCO LITIGATION , A NDFOUND THAT THE EXCLUSIONS APPLIED, BECAUSE ULTIMATELY WAS THE PRODUCT THAT W ASCAUSING THE INJURY.

I AM NOT SURE WHY YOUR YELLOW LIGHT WENT ON. IS THERE, YOU ARE N OTDIVIDING YOUR TIME, ARE YOU?

NO , I AM NOT.

YOU STILL HAVE YOUR TIME .

CAN YOU EXP LAIN WHY QUAKOS APPL IES?

ILL, YOUR HONOR, AND I THINK THAT IT TIES INDIRECTLY TO THE ANSWER TO JUSTICE WE LLS'S QU ESTION. ONE REASON THAT QUAKOS , I THINK, WAS HELP FUL T O JU DG E JORDAN, WAS IT WAS CLEAR , I THINK IT YOU I THINK , I F YOU LOOK AT HIS OPINION THAT , HE IS LOOKING AT THE CASE LAW AND ANALYZING THE CASE LAW, AS A DISTRI CT COURT JUDGE, FEELING COMP ELLED TO MAKE A PREDICTION , AND , A LSO , FEELING COMPELLED TO FO LLOW THE INTERMEDIATE APPELLATECOURT. THE COURTS, HE SAYS , I DON'T KNOW EX ACTLY WHERE IT WOULD GO, BUT I FEEL CONSTRAINED BY GASKINS. WE, THEN, PRESENTED QUAKE QUAKOS TO JUDGE JORD AN AND HE SAYS THIS CH ANGES THINGS , BECAUSE THE PREMIS E WAS THAT THE ACCIDENT OCCURRED ON THE PREMISE. THAT THE ACCIDENT WAS THE SALE OF THE HERBICIDE, NOT , THE ACCIDENT WASN'T WHEN THE HERBICIDE , WHI CH THEY THOUGHT THEY WERE BU YING FERTILIZER AND THEY WERE ACTUALLY GE TTING PO ISON INSTEAD, THE COURT SAID THE ACCIDENT WASN'T WHEN YOU PUT THE HERB ICIDE ON THE TOBACCO PRODUCT AND IT KILLED THE M. THE ACCIDENT WAS ON THE PREMISE WHEN THEY MA DE THE DECISION TO GIVE YOU THE WRONG PRODUCT OR MADE THE NEGLIGENT ACT OF GIVI NG YOU THE W RONG PRODUCT. QUAKOS ANALYZED PREC ISELY , THE ISSUE O F WHAT IS THE ACCIDENT. WHAT IS THE OCCURRENCE.WHICH IS DEFINED AS A N ACCIDENT. AND IN QUAKOS AT PAGE 271 , 849 SO.2D , THE COURT SAID THE ACCIDENT WAS THE SHOOTING IN CIDENT AND NOT THE NEGLIGENT FA ILURE TO PROVIDE SECURITY . IN OTHER WORDS , IN QUAKOS, THE COURT SAID THE ACCIDENT ISN'T THE NEGL IGENCE THAT PREDATED THE SHOOTI NG. THE ACCIDENT WAS THE SHOOTING, ITSELF. SO I THINK QUAKOS I S HELPFUL IF FOR NO OTHER REASON, IN UNDERCUTTING THE THE ORY UNDER WHICH THE GASKINS DECISION WAS MADE, BUT , FURTHER , QUAKOS ESTABLISHES VERY CLEARLY AND DIS EASE IV ELY AND DECISIVE LY THAT IT IS THE SHOOTING THAT CAUSE T HEINJURY, THE SHOOTING CAUSE THE INJURY, WHICH MEAN S THAT THE CAUSAL CONNECTION BETWEEN THE GUN AND THE SHOOTING, IS INDISPUTABLE . I AM S O RRY . THE GUN AND THE INJURY IS INDISPUTABLE, AND GETTINGBACK TO THE DEFINITION OF ARISING OUT OF, ARISING OUT OF, THE COURTS HAVE YOU AND IN MUSTLY FOUND IT IS UNAMBIGUOUS.THEY HAVE UNANIM OUSLY FOUND THAT IT IS BROADER OR ALMOST UNANIMOUSLY FOUND IN FLORIDATELL AT LE VELS, THAT IT IS BROADER THAN ME RELY CAUSED BY, BUT IN ANY CASE , IT INVOLVES AT LEAST SOME CAUSAL RELATIONSHIP , AND THE CAUSAL RELATIONSHIP BETW EEN A GUN AND THE GUN SHOT WOUND CANNOT BE DIS PUTED . I SEE MY TIME IS UP. THANK YOU, YOUR HONOR .

CHIEF JUSTICE: THANK Y OUVERY MU CH. REBUTTAL.

I HAVE TH REE POINTS. MAY IT PLEASE THE COURT , I WOULD LIKE TO MAKE ON REBUTTAL. FIRST , THE INSURER S ' CONTINUED EFFORT TO AR GUE THAT GASKINS IS DISTINGUISHABLE BECAUSE THEDAMAGE DI DN'T RELATE TO THE PRODUCT, AND THEIR OTHER BASIS FOR DISTINGUISHING GASKINS IS SPECIOUS. THE GUNS WERE THE F INAL ST EP IN CAUSING THE INJURY , AND THE HERBICIDE WAS THE DIRECT AND IMMEDIATE CAUSE OF INJURY TO GASKINS.

IT SAYS IN YOUR POSITION AND I QU OTE, ACCORD INGLY ON THE FACTS OF GASKINS, THE NEGLIGENCE ITSELF , CAUSED THE INJURY, AND THE PRODUCT WAS, QUOTE, MERELY THE INCIDENTAL INSTRUMENTALITY THROUGH WHICH THE DAMAGE WASDONE. CLOSE QUOTE.

I THINK THAT'S CORRECT.I THINK IN GASKINS , THAT IS SHORTHAND FOR THIS IS NOT A DEFECTIVE PRODUCT O R PRODUCTS LIABILITY CASE, AND GASKINS HAS BEEN UNDERSTOOD TO MEAN THAT IN THE FOUR SUBSEQUENT FLORIDA CIRCUIT COURT DECISION THAT IS HAVE CITED IT, ALL CONSISTENT WITH ITS HO LDING , IN