morning or honors in may please the court my name is kirk jenkins and i represent the a pallant westchester fire insurance company and with the court's permission of reserve five minutes for about all your honors the judgment here should be reversed for three reasons and i'll outline them quickly and then come back to them in slightly more detail number one there is absolutely no basis for believing that the minnesota supreme court would apply the compulsory insurance doctoring here to a  clark county nevada ordinance which has none of the characteristics that are found in these compulsory insurance statutes around the country number two the universally agreed on prerequisites for applying the dr in the first one is simply not here and that's not a disputed fact northwest conceded that below and is conceded it once again in front of this court and number three the ordinance simply doesn't apply to the insured here now i think this case has to be viewed through the prism of the standard because this is a diversity case and what that means is that it is not the function this court has set of a federal district court sitting in diversity to expand state laws in ways that are not foreshadowed by precedent well minnesota law governs here there is one published case that either side has found out of minnesota law it's the nine with case and it's forty five years old so that's i think the prism that the court should approach this case through oh wait let me ask you just i thought it was kind of curious to and as a matter of public policy would minnesota supreme court even care so much about applying the nevada ordinance and making it controlling your honor i think that's a  fair point that the minnesota supreme court would feel like we're going to set a has as the expression goes very little of a dog in this fight one where the other the reason that the court below applied minnesota law and in fact both sides argued for the application of nevada law but what the district court ultimately said is well it's best i can tell there's no difference between minnesota law and the model law on this subject so we did apply the default rule of my boy to his or maybe interested in supporting its ordinance but i think the important point for the analysis your honor is the distinction in what the public interest is that's reflected by this ordinance what we find when we consult the cases  around the country that have applied this compulsory insurance doctrine is the statutes are adopted to promote public health and welfare and the parenthood parodic matic instance is we're talking about members of the general public who are harmed unexpectedly by a stranger to the transaction they have no prior relationship with the stranger and as such they have no way of knowing who the relevant insurer is they have no way of giving notice themselves to the insurer no way of compelling that individual to comply with the terms of their policy here well what we find when we look at the legislative history of this ordinance is it's obvious that clark county nevada adopted this ordinance interest to protect itself from premises liability suits that's what actually was going on here and more importantly the facts that we have here are very different from that current big magic situation of a member of the public being harmed by a total stranger northwest was injured by a business partner a company that they had a contract with and had had a contract with for several years continued to work with for several years after the incident they had already negotiated the terms of allocation of rescue northwest agreed to carry certain kinds of insurance paul agreed to carry other kinds of insurance northwest involvement with pals which is the name of the insurer it was in no way fortuitous in the way that a member of the general public harmed on the highways or a customer that happens to walk into a propane dealer and that's the fish around tree case that we talk about in the way that that's fort so that's the first distinction between these cases the second distinction is that these cases tend to be aimed at a broad class of actors interacting with the general public motorists on the highway taxi drivers truck drivers people offering storage services the brad movers case out of illinois the fish around tree case that i just alluded to you wanted to go into business offering liquid propane to the general public well we're going to impose this on you that's not what we have here we actually have a subset of a subset here this ordinance is directed not just at permit t s at mccarran airport and in las vegas it's directed only at the permit teams who don't have a prior agreement with clark county about what insurance they're going to cover so that's another distinction with all of the laws that have excuse me applied this doctor and  finally what we see in these ordinances and statutes in which the doctor and his properly been applied is that they have very detailed requirements of what the insurance is supposed to say and typically they also say and there's these additional requirements that are read automatically into the policy whether they're actually there or not and the devadatta motor vehicle statute is an interesting comparison because it has six different kinds of information that it says has to be stated in the policy additional ones that as i say it says they're in the policy whether they're literally written written there or not well when we look at this ordinance from clark county it says two things the type of coverage and the limit and in fact according to the district court apparently they were very serious about the limit because pal's the district court said pals got this insurance because of the ordinance well they conspicuously sued certainly did not have one hundred fifty million dollars and  coverage which is what the ordinance actually says so apparently at the end of the day the only thing that matters about this ordinance is the types of coverage so that's the other distinction viewing this in the context through the prism again of that motorist on the highway or that retail customer who just happens to walk into the business to buy a tank of propane policy is very different here that individual has no way of protecting its interests before the encounter with that to a dealer northwest not only did it have that ability they did in fact negotiate that contract second that individual has no way of compelling cooperation with the investigation of the ensure we asked in our brief why didn't northwest simply send piles a letter and say you know what you're going to prove to us that you've notif your insurer and that you're actively cooperating with the investigation or thirty days from today we're done the contract is terminated they didn't do that it's not a question of whether they had an obligation to do that it's another instance in which this situation is very different from what any jurisdiction has ever applied this doctrine to third they either knew or should have known who the insurer was they had a right to an insurance certificate and fourth they could have given notice at any time the point isn't that they had an obligation to they didn't but again it's another distinction between them and that motorist on the highway or that person who walks into a dealer to rent a storage space are second point briefly your honor every court that we've been able to find we find no contrary authority on this  issue says that the first prerequisite for this order for this doctrine to apply is the policy has to be obtained in order to comply with the statute now northwest says well the subject of a town of pals how can we possibly know it doesn't really matter we're not talking about subjective intent here your honor we're talking about a question of law these people had a preexisting contractual obligation to get this ha army and i'm at this one of the cases that the district court cited that's a requirement that's where the that's the reason why the policy has to be obtained it's not true here your honor that one admission should be it is enough to reverse here and the final point i wanted to raise before sitting down is that the ordinance applies to as i said a subset of a subset permit t's who don't have a preexisting contract  with the county here pals absolutely had such a contract that the temporary operating permit which had several requirements in it for insurance so they did have a preexisting contract with the county so the plain language of the ordinance it wouldn't apply briefly your honor we've dealt in considerable detail in the reply brief with the issue of waiver we believe  we've dealt with it adequately there and this and hopefully disposed of it are three responses as we say they're our number one big issue the question is have you raised the issues not the arguments and we raced three issues here not nine we raced three and they were the focus below even if it were the law which it isn't that you slice and dice the opponent's argument into the smallest possible subsets in order to judge waiver we demonstrate in our reply brief that we for served everything and finally two of our three arguments the first one and the third one as i outlined them are pure questions of law so there's no waiver possible there to begin with the second one is based on uncontested facts and even northwest admits that they say pages nine and thirteen of their brief well on the under uncontested facts we win well if the facts are undisputed your honor there can be no waiver so that question we've dealt with morning please the court both sides concede that the compulsory insurance doctored represents a valid and controlling law in this litigation the compulsory insurance doctrine is both very simple and very fair is simple in that all it stands for is if you have law making body makes a law telling one group of people that they have to have insurance in place for a nother group of people that if one of the persons in their protected group of people is injured in an accident or by accident then the post accident misconduct of the policy holder can't frustrate the will of the legislature  misconduct such as failure of notice and failure and cooperation in this case all see is there for the protection of the insured it's also fair that the insurance company is being asked to cover precisely risk you agreed to cover received a premium to cover and the injured party isn't left out in the cold light being first injured by somebody and then being injured again by having this ordinance the required pal's a vendor permit he at the airport to have insurance in place hangar keepers insurance to cover nine one property in palace care hangar keepers insurance is a very specialized insurance that is designed to protect against physical damage to aircraft and they were also told that they had to have at least five million dollars worth of this specialized insurance the compulsory insurance policy in this year's you is not coincidentally a five million dollars hanger keepers policy purchased by pals from westchester insurance that promised to pay for damages to not own aircraft serviced by pals the injury at issue is precisely the type of injury addressed book by the law westchester sole grounds for denying coverage is the post accident misconduct of the insured they don't just dispute that this is precisely the type of insurance and protection they were paid to provide in other words this is a classic instance where the compulsory insurance doctrine should be applied to the district court held that in order for the doctor to apply the insurance coverage issue must be purchased in order to comply with the law and that the injured party should be among the most people in the class protected by the law here you had a law saying you must buy five million dollars naggers keep coverage you have a five million dollar premises liability or property damage most new laws are think that's because the most prevalent type of compulsory insurance right now is is automobile insurance but the district court also  pointed out that it goes beyond that and in this case i think the key issue is no matter who you are and no matter how big a class of people you are if a law making body says i want to protect you and i'm going to require that somebody have insurance in place to protect you it shouldn't matter whether it's property or bodily damage or whether it's one hundred people or a hundred thousand people what do you think about my question about minnesota's spring cords public policy or you know we're looking at here that minnesota are trying to devote the minnesota supreme court would do in really looking at what a nevada state courts would do do you think do you think that the minnesota supreme court which may carved out a very narrow exception would statute was that if there was a compulsory insurance policy in place down the post misconduct conduct of the policy holder can't deprive the injured protected party of his or her well but the minnesota supreme court made some very general statements but it also made some very specific statements that they had they were dealing with a statute that was much more expressed about protecting somebody where this is a very general ordinance and the minnesota supreme court was saying this is an exception and we're going to make it and then they they made some general statements but they went in and they looked at the statutes specifically and said reading the plain language instead since they might be you know the legislature meant that there be coverage there for the benefit of the injured here  have a much more general ordinance and i question then is you think minnesota supreme court would would continue to broaden their exception to an ordinance that is not doesn't have any any of the language court decision but then it it goes very and it analyzes a very specifically to the statute which had strong language that they were trying to protect the injured party and we don't have that here in this ordinance you don't have the same identical language but you do have the same identical expression of the will of the law making bodies that party by insurance protection for the protection of party b it shall be for the benefit of party b and therefore on issues of fundamental fairness and the direct through wording of the will of the lawmaking body injured party shouldn't be the one left out in the cold when the insurance or letter here's what i intended there is an example and it's nemat that you're familiar with but the minnesota supreme court says that the section makes it the expression of the will of the clark county that that the insurance should be there to cover shelby for the benefit of the injured party it is simply an extension of the benefit yes the minnesota statute the minnesota motor vehicle statute is different from the nevada statute but the principles are the same the principle are that if you should tell a group of people that they have to have insurance in place in the purpose of that insurance is to cover somebody another group of people whom you might injure then the compulsory insurance doctrine which has been adopted or on the country with beyond beyond even automobile cases  then that injured party shouldn't be deprived of things out of their control and i want to just address a couple things the notice issue and the cooperation issue but northwest couldn't force pals to cooperate this is a party that didn't respond to a lawsuit didn't respond to a federal subpoena short of putting a gun to his head and frogmarch him to the nearest westchester office we couldn't force him to do anything the undisputed evidence is that northwest didn't learn they say we should've learned but we didn't learn of the existence of the westchester policy for over a year and shortly thereafter we gave them notice i in my summary judgment brief because they made a big deal out of it put a long section in there that should we have no obligation to give notice we're stranger to this insurance contract we have no obligation to force somebody to cooperate with  and westchester didn't respond to that they just left them alone i had lots of laws there now they're suggesting we should lose a right to coverage even though we didn't have an obligation to do it also westchester had plenty of opportunity to respond well was their response when they received defend this thing this time and wallace again to the extent that you've not already covered it in your argument how do you respond specifically to mr kirk subset of a subset argument again i think that first of all it's a fairly large group of people last vegas international airport has lots and lots of owners of aircraft going there but again i don't think that's the point i think if a law making body says i want to protect this group of people i don't care if there's two people in that group or two million people there is a protected group of people it's a fairly large number of people and to say that there's little or no public benefit to this ignores the public benefit of having a functioning well what about the argument the current car the clark county ordinance was designed to protect itself from premises liability i think that that was part of it too but it clearly also said that you think they're worried about northwest airlines or united airlines or anybody else new york and i think that they were because it says right in the statute that you should have cover in terms of place to cover non on property so i think the fact that it it gives a benefit to both northwest and the clark county is irrelevant a legislature gets to pass laws that benefit both the government and private individuals and that's simply what one of these laws d cited to the district of nevada so hang out the purpose of compulsory insurance is to protect the injured party it's not there for the protection of the insured in the compulsory insurance doctor and every single element in the fact that they might have had a contract with northwest of the same thing but if i make a contract with my neighbors to carpool to downtown minneapolis and i designate in their g s everybody have this and this is this insurance which is the mandatory state insurance the somebody seriously going to argue that my contracting also admitted that insurance non compulsory of course not it's compulsory because the law sort of is compulsory i've lost my train of thought thank you let me ask you this you know if what concerns me is whether the minnesota supreme court would go this far i think this may be out near the extreme of enforcing compulsory insurance l that i guess you know we're trying to to give an educated guess where the minnesota supreme court would go do you have anything other than the  nine months whatever it is the indicate this you think the minister the supreme court would go out to censor the extreme and sent you know you're pretty much arguing that any compulsory insurance law  were other than the language in the this to be assertion that my client did nothing when they learned of this situation is simply false and i think it's important to clear that up it's in our brief and it's also on the record after we learned of this situation we actively tried for some time to get the cooperation of the insured and even after we got official notice from last juster of the law scuse me from northwest of the lawsuit we did offer to our insured to attempt to assist in getting that fault hopefully vacated and there was no response to that sort of quick factual correction oh how are you made out of our dead but how are you prejudice here by late notice and  lack of cooperation well your honor the there is real prejudice here but it's important also to recall that there's a final judgment of the district court in nevada saying that we did nothing wrong here that in fact the notice and cooperation provisions were breached or you have you have every right to have those provisions you have every right to have them and force but we're looking at writing them out of your insurance policy that's what northwest is act but for for us i would like to know somehow in this particular case you were prejudice your company was prejudiced somehow by the late notice or the lack of cooperation simply put your honor we were completely unable to make any investigation by the time we realize that this situation it or isn't this airplane was fully repaired and back in the air so there was no realistic investigation and a possible by the time we learned of this  it's also important to note that the district court in nevada said that the end deciding that we'd done nothing wrong that we had every right set of showing a prejudice wasn't actually necessary but i think it was certainly true here your honor the northwest argues that if a statute makes insurance compulsory that's the end of the story the compulsory insurance doctor applies to my knowledge it's not a single case anywhere from any jurisdiction that holds it that to the ordinances and statutes which this doctrine is applied to in the past or is it not and we think the answer to that is inevitably that it's very very dissimilar to the statutes and ordinances that other jurisdictions have applied the doctrine to finally your honor we are counsel said we were merely being asked to cover what we agreed to cover your honor our provisions of notice and cooperation were breached that's what the district court set so they answer that is no we're not our our policy we acted within their rights under the policy your honor we would ask that the court reverse and remand with instructions to enter final judgment for westchester thank you thank you you both for your arguments frustrating some prize to try to guess what another court would want to do and this is one of those thank you for your arguments you've given us some guidance and we'll do our best to get