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ORAL ARGUMENT1/24/2012(713) 225-5800CORNERSTONE DOCUMENTS & REPORTING
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
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No. 10-3887
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TRAVELERS PROPERTY CASUALTY COMPANY OF AMERICA,
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f/k/a The Travelers Indemnity Company of Illinois
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V.
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ROBERT K. MERICLE; MERICLE CONSTRUCTION, INC,
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Appellants
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Present: SCIRICA, RENDELL and SMITH, Circuit Judges
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TRANSCRIPTION OF
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ORAL ARGUMENT
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(January 10, 2012)
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Case: 10-3887 Document: 003110787264 Page: 1 Date Filed: 01/24/2012
2ORAL ARGUMENT1/24/2012(713) 225-5800CORNERSTONE DOCUMENTS & REPORTING1
JUDGE SCIRICA: ...is Travelers Property
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Casualty Company of America versus Robert Mericle.
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Mr. Cruz.
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MR. CRUZ: May it please the Court.
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There are many bad actors in this case.
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That undeniable fact produced the District Court opinion
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here. But the District Court made a fundamental error.
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It asked the wrong question. It asked whether
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Plaintiffs had pleaded any claim that would fall outside
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of the coverage. Of course they have. Travelers
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likewise in its briefing devotes virtually all of its
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briefing to making the case that Plaintiffs, if they
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were able to prove a willful criminal violation by
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Mericle, could fall outside coverage --
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JUDGE SCIRICA: Well, don't -- we look at
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the facts that are alleged in the Complaint.
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MR. CRUZ: Absolutely. But on the facts
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that are alleged, Plaintiffs also pleaded a theory that
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would not require the proof of a willful criminal
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conduct that caused their harm.
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JUDGE SMITH: What was the claim?
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MR. CRUZ: A negligence claim. And they
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pleaded it in multiple places.
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JUDGE RENDELL: Where?
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JUDGE SMITH: Where?
Case: 10-3887 Document: 003110787264 Page: 2 Date Filed: 01/24/2012
3ORAL ARGUMENT1/24/2012(713) 225-5800CORNERSTONE DOCUMENTS & REPORTING1
MR. CRUZ: Well, for example, Count 8 of
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the Master Individual Complaint, which is at Joint
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Appendix 312, it's a civil conspiracy claim. That civil
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conspiracy claim, the Plaintiffs pleaded a civil
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conspiracy among all -- all the Defendants specified
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included Mericle, and they go on to say that Mericle and
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the others --
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JUDGE RENDELL: Sorry, you are at 312?
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I -- maybe I just pulled the wrong section, but I have
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A42. Starting at A42?
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JUDGE SMITH: This is Count 8, the civil
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conspiracy claim?
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MR. CRUZ: Yes, Count 8, civil --
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JUDGE SMITH: A312?
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MR. CRUZ: Yes.
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JUDGE RENDELL: Okay.
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MR. CRUZ: Yes, A312. There what they
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allege is that the parties paid bribes/kickbacks. Now,
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that's contrary to the colloquy, and what the federal
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prosecutor said, but we're going to assume the facts are
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true in the Complaint.
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JUDGE SMITH: How do you -- how do you
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conspire negligently, if that is the count that you are
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referring to, Count 8 civil conspiracy?
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MR. CRUZ: Because what the Complaint
Case: 10-3887 Document: 003110787264 Page: 3 Date Filed: 01/24/2012
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