please call the first case accident that occurred to me may of two thousand and four the two insurance policies involved are a trucking policy which was issued by accidental fire because the company and a not trucking of the accident is essentially what dictates the outcome of the case at the time of the accident yes that had not yet happened when the accident occurred he was at the s s ts offices the morning of the accident signed the agreement left and he left to go have his truck with which he had just bought checked out by a mechanic and to pick up a friend is the evidence that you are operating your truck pursuant to the operating with already of the trucking company that you signed the agreement with you can't fall straight for a trucking company unless you have operating authority the trucking company gives you the operating authority the placards that you put on your truck identifies to please him all right he him he had to get them but at the time of the accident he did not have to have any trucking companies operating authority to drive that truck he could drive a truck for whatever reason he wanted to aside from working for us as to yes take it to the gas station take it to the store take it to his home take it to pick up a friend which he was doing at the time i think we can see it was a higher dollar but that's not the one that doesn't define whether there was coverage or not then you have to go to the next step in analyze whether at the time of the accident in the john doe what's was and i'm sure looking at w says he's not this visit this provision does not apply because at the time of the accident in the john of what's had left our premises could use this truck for whatever he wants is for we have given him no instructions in terms of picking up freight attaching a trailer transporting a load his something in his truck checked at will he also but he also has some go the whole mechanic or something that part of his responsibility under the agreement was to have his truck in proper operat condition in order to transport freight for s s ts he also just bought a truck and i think it's undisputed it's not just the effect that he was going to take going to a mechanic he was going to pick underlying personal injury case and all we have i think in his deposition from that case is that he was having his truck checked out and he was going to pick up a friend now that you can have a truck checked out when you just buy a vehicle you're going to have your vehicle checked out to make sure you're getting what you paid for he also could have been having his truck checked out to make sure that it was working properly in order to in his words he was unemployed at the time he wanted to start his own going on within that day why he was going to where he was the only thing that's in the record is his his deposition from the underlying case and in his deposition from the underlying case he wasn't asked in great detail about the at because in the complaint in the underlying case there were no allegations that he was working at the time there were no allegations against s s ts at all basically the only get out the allegations or the underlying complaint or that he was negligent in the way he drove his truck in and the and the police report the police investigated the accident confirmed that there was no trailer confirm that there were no placards he said that if there had been any discussion about s s ts and in their role in what he was doing at the time that would have been included in this report in which john what's never talked about s s t as to the police officer who investigated the accident and he never said he was doing any work rest as to yes well wherever you started from before you left with it with the law he had he had although he had delivered the loan and dropped the trailer he had not gotten back to his original point of demarcation did his employment contract or whatever you want to call it with my position is number one the court was wrong in saying in concluding that accidents policy applied the court was wrong completing that progressive policy did not apply as a matter of law and either to me that's the word that there's a little bit of a distinction there in the inferences that i think there's two references that could be drawn from the undisputed fact that he was going to have his truck checked out by a mechanic number one to make sure that it below and remain when new evidence do you have three well i think that we would continue to try to locate mr aylmore johnno wants to see if we can get more details of exactly what was going on to what he was doing at the time but that would be the only source of new evidence right if you're able to he's a sure what progressive of doing if that's what this ts his policy was to have all these vehicles inspected and serviced by a mechanic before transporting a job it was wrecked it was their popsy that was part of the agreement and it was the owner of the trucks responsibility to have that done responsibility to maintain his truck was right was his not was not  doing that ah how does it magically become some sort of mission on his own for his own purpose why we don't know what i mean he was picking up a friend for some reason what is a record is there to substantiate in the record there two reasons or both want to have the truck checked out to make sure that he's getting what he paid for secondly to make sure the truck operates properly for for his his new job that he is going to get with s s ts while all the cases that are cited by progressive the the driver in those cases was under dispatch and you have picked up a load was going to pick up a loaner was going back to wherever they started their day or their trip from in order much providing for the same things today that well i think generally yeah there's a trucking policy and i'm not talking policy for every truck that's on the roll there may be nuances to each policy in terms of you know different types of phraseology but generally on don't get the death or they actually support my position because those cases all say that when the trucking policy applied the truck driver was under dispatch head placard on his truck and in and  was either going to get a load or had just gotten done dropping off a load and in this case that's not the case that doesn't that hasn't happened there was no the truck was not being used in the business of s s t yesterday to transport or to pick up a low and that's either do one of two things find out gross profit is not apply the matter of law the progressive does apply or that they both apply and that the other insurance clause makes progressive policy primer thank you thank you you'll have five minutes taken a long time to get there but finally we have that the session last then when i found interesting about that point was that the reason occidental originally denied coverage was because it was taking the position that the tractor had to be specifically described auto on the policy so when the denial letter was sent in january of two thousand and eight when the affidavit from the accidental representative was presented to the trial court  was told this was a specifically described auto and it's not covered because it wasn't listed on the policy until june eighth of two thousand and four about three weeks after the accident when an issue has been resolved today because no five sa cover novel and if you read the accident a policy at least vehicle was covered at the moment of leasing there is no provision in the policy that states that a least on a was not cover p the definition of a covered auto is set forth in the occidental pulsing age twenty six of progressive appendix covered auto includes hired autos which are defined as only those autos you name insured s s ts lisa's definition doesn't require a hired auto definition of a covered auto at that tractor is covered in respectable placards regardless of whether a trailer is attached and regardless of whether the truck is under dispatch and the same is true with respect to the definition of insured driver a permissive driver which is found on page twenty seven of progressive suspend x work defines an insured to include anyone using with s as ts as permission a covered auto it had ceased and there's no question that mr emoji was had permission to use his tractor no question on first of all it doesn't condition a permissive driver to one who's driving with placards on a truck or it doesn't condition a permissive driver to one who is under dispatch as long as he has permission regardless of use that drivers going to be covered by the opposite poles are there any restrictions at all let's say he was taking the truck to a party or whatever  witnesses who testified as to that subject matter first to see mr evil genius when he was asked that his deposition in the twit case where he was headed at the time of the accident and his response was that he was supposed to pick up a friend and supposed to take the truck to mechanic is found at page twelve thirty seven of the record next question was there a problem with the truck he answered no they were supposed to do mean sonet checking everything out supposed to start a new question were you visiting a friend i called the friend earlier in i told them to come with me so i could drop make truck off at the mechanics of all let's go to the show while you're driving a truck or any kind of vehicle your in t also we also have the testimony of the general manager which is very important in this case because he fills in the details and what he testifies to is that when the lease is signing that morning it's no longer the exclusive use of control of the motor carrier lessee he'd been instructed better motor carrier to have his vehicle inspected and maintained and he believed he was following that instruction at the time up now the reason why that's business use is that it serve the trucking companies interests in three ways one it made sure that the trucking company was in compliance with federal state regulations to a safety in the third reason which was testified to by alex sanders sic was that they wanted to make sure that the truck was ready to go whenever the motor carrier wanted to use it now why isn't that personal use it's not personal use and this reason for two very important reasons one this particular inspection had  wanted to start a new job that's exactly what he's talking about he has to have his truck inspected before it can begin homing freight for the motor carrier which took place three days later on may fifteenth you started hauling the under your definition of permissive driver connected with the motor carriers business and it's a personal use for his own individual use then he's covered by the progressive policy at the same time he still covered by the occidental policy because the occidental policy is not limited to the asking that the judgment be affirmed for two reasons one because the findings made by the trial court were based upon undisputed facts in the second is that there was no error of law in the conclusions reached by the trial court in the when we finally get to the end of it the indisputed facts are really quite simple when the vehicle had been leased by the motor carrier to the stream of gene which had been given permission by the motor carrier to operate that tractor and three it was being operated in furtherance of the motor carrier's business at the time of the accident those are the three basic undisputed facts at the trial court based its rulings on and therefore we think that the summary judgment was both appropriate and proper just a couple of very quick points and in rebuttal first with respect to the covered auto issue on outsells policy even if the truck already discussed the second of which was the definition  time of the accident pursuant to operating rights granted to s s ts he was he didn't have to use that he didn't have to have those operating authority rights to take his truck to a mechanic or to take his truck to pick up a friend so it gets back to the issue of permissive use and our position is that i just know this policy applies to the entire policy as it is a trucking policy applies when his truck is being used in the business of s s ts as a as a matter of law that was not being done here he was being he was using it to pick up a friend which is not in the business of s s ts and to have the truck i think for finally conceded that there were are some instances where he was taking the truck to a party or something like that but he did but even then his argument was that in those situations absence policy would still apply which i  on the business side progressive policy is being used covers there to cover truck when it's not being used on the business side and if both parties apply then you go to the other insurance clauses and that makes progress