the clear tory judgment summary judgment was entered in the context of an underlying criminal case involving in fact involuntary manslaughter and i think i don't i didn't find any other cases by the way that in the involuntary manslaughter context as it relates to declare tori judgment but if we look at all the cases carefully the principle the collateral staffel in the context of this kind of a criminal case should not apply in an in the criminal context they then look at whether or not there was a catch just disregard by the defendant whether it was waving the gun around etc etc as the court held as the criminal judge in this case said sales are  an invalid and i think his term was in an inexcusable recklessness but my point is that the mindset bad mindset inexcusable rex was he was different then the mindset that we would need to look at in the ca issue with act on summary judgment is mr salazar's subjective state of mind he's going to he's going to testify i never intended that the gun would go off i never injure tell me how because reasonably expected you're waiting nap with mr salazar some state of mind i am i'm not sure that the case is support the proposition that reasonably case and the other cases that they say the defendant the criminal defendant has the right and there was direct evidence of intent or some direct some direct evidence of his state of may well i now do you can't just say well whatever he said case are hamstrung and my point is advocate and no rule that says this if the underlying criminal in the underlying criminal case the defendant invokes the fifth amendment and does not testify that can never g lack when they talk about the elements of collateral stapel there's a fourth point whether whether there was unfairness and underlying unfairness and i'm submitting to this court that in an involuntary manslaughter charge that particular case when you compare she of how he had fortunately lived and then then she would be able to would never be able allstate would never be able to get out of it under those facts but because of here because she died in the criminal can't explain that to me addressed the issue of just recklessness that is a different standard and then reasonably expected to cause injury it would still be a fact there would still be a question of fact or the declared torrie judgment judge because there's no jury at the criminal case in this specific and catholics and i think the transcript was part of the record here the mere discharge of a fire in it that kills or injure somebody in that act the discharge of a firearm is something that is reasonably expected in the context of a criminal case to cause injury but in our civil case we have to look at what salazar what was his intent when this thing went off we did he reasonably expect that it was going to d discharge and  is very different it is we're talking here and that's my point i think that's underlying make the point in the criminal context the whole in these invalid can murder it's different because murder there's going to be specific evidence of intent that ends the issue like the where in the metropolitan case that we sat of a deck i was charged with them but with voluntary manslaughter but he pled it down and as your honor stated in those pleiku cases the courts are not going to give the insurance company and easy out in those circumstances but in our situation invent the criminal law is not going to let somebody walk if they can if they're waving a firearm around and somebody gets killed but that's not the same as what his  bodily injury or intended or which may reasonably expected to result from a criminal act is clearly a criminal act is found guilty of criminal act and pattern all state has to pay but if the somebody is in tax akkad and runs a red light and kills me in my state susan they can raise well it's a criminal offense now because now it's reckless homicide and there's no coverage it cannot be our law there's there's a element of public policy behind all insurance coverage and yes i am sure he has to stand i mean the plaintiff rather his to stand in the shoes of the insured sales are to some extent but the mere happenstance that this girl dad as opposed work they can get to damage your wording it's mr salazar the question is is this within the risk that all state agreed to assume when it wrote the homeowner's house and i totally agree rather and the answer to that is is wearing the ye expect that's the main point i'm trying to bring if she was shot at and injured that is clearly a risk that they would be on the hook for but because she died in this case the shooter now gets convicted of involuntary manslaughter they're off the hook they just issues in the deck action identical to the criminal case and i'm submitting to this or that then that thank you morning they're out of your others just maybe jumping right to what the discussion has been this morning the criminal act the criminal charges convicted of was both involuntary manslaughter and aggravated often use of a weapon but we cited the rule the standards the criminal standards for involuntary manslaughter and that was one a person unintentionally kills but his acts were such as to likely cause death or great bodily harm that's what the criminal judge convicted had let certainly as much or i think much more than also as exclusion which as you note is a sub is a subjective reasonable belief but it still is a matter of that that is now collateral stoppel as to paul's the fact that it was a crime that's been determined and the fact that injuries are reasonably expected to result that's what the words were in the statute under intent that's done come under the intent in the criminal that it isn't something more akin to being record i think it does if you're if you're acting in a criminally reckless manner that of the criminal law says that injury is likely to result that's why it's williams which is now would weigh down for murder now we're just down to a battery situation with a cabbie in a car and a police officer and he was only convicted of mr battery and the court said and he got community service in that case for mr salazar still in jail that that to me doesn't that go right to the question of being really expect because if he had good could be intent you could have all your best friends in the room but maybe he did it and you're playing around with his gun you're loading it on monday making sure it's loaded passing it around being told to isn't it more likely that this is he was taking the risk so it isn't that you're not saying that he had to want to shoot her killer you're saying that he had to take the risk that in this crowded garage under these circumstances he was willing to take the risk that someone anyone could get shot exactly  room full of young people who had been drinking and some of whom have been abusing prescription drugs he meant taking out that weapon there but he did not intend or at least there's no evidence judge that he intended to discharge and i guess be excited and neither did can he didn't intend to to all turns on his subject to contend it was as long as he didn't testify in the criminal case and as long because he is willing to take the stand and say i never meant to shoot off the gun he w case although i have used we still can sue him but the practical effect when insurance policy is there to cover people to get hurt by accidents and that's what this is and the they had an active back to the thing i keep repeating myself but of h survived what we wouldn't even be here there wouldn't be the declaratory judgment wouldn't wouldn't hold water and it just doesn't make sense i think that's why i think this emmett was asking the panel look at this involuntary manslaughter statute is different as is just as hanging pointed out from reasonably expecting that an injury will occur but the policy talks about the but i believe injury being reasonably expected to occur ok it does but i don't think again they just fall back and what i've pointed out before so then that would mean that in the end then all state or any insurance company is going to always get out of every case when somebody dies because if they if they if you reasonably expected to result from one the intentional or criminal acts or omissions so what you're doing is saying intentional criminal acts just for getting at her and i don't see how you can we with that well i but in the reasonably expected language in the insurance can't fix there still be some there must be some evidence of intent or state of mind of the defendant and that you don't think that we loaded packed on in their case and i don't know what civic is might say in the civil case and that's again my point you have criminal rights and we and because he's asserting those criminal rights that prevents the state of heber from from fully getting all the facts before whoever the declarator judgment judge or whoever the fact finder is in the civil case and i don't think in that context collateral step would be a play then it seems it seems curious to me that the cases that have upheld collateral stapel all have some specific evidence of the defendant criminal defendants intent or state of mind and we don't hear and i think that and i don't think liberals that we should a plane or those are all right thank you