zurich deny coverage for a property damage claim based on two exclusions in the policy the first exclusion is the particular part of your work and the second exclusion is the care custody or control exclusion with respect to the first exclusion and the one relied upon by the district court in granting summary judgment for zurich the primary dispute is whether e p a s was performing its work on the particular part of a transformer that was avoid by way of brief background to the transformer is a large piece of electrical machinery with numerous parts component parts including the bushings which are external extent about nine feet above a  transformer this piece of equipment weighs about four hundred three thousand pounds so it's obviously a large piece of equipment but there are a lot of distinct and separate components that comprise the transformer including the bushings radiators fans of wiring gauges lead cables and the internal core and coil kelso when i look at the special instructions there are references to things you do to the coil something about grounding the coil i don't understand any of it al components and the rule the ultimate ruling on this case by the district court was that the e p a s was performing work on the coils of lead cable so i think the the judge in response to your ex argument that we were basically working on the entire transformer she narrowed it somewhat but found that we were working on the coils lead cable well that's a mischaracterization at the lead cable as an entirely separate part from the quiet they're all connected i mean the nature of electricity is that the parts of the transformer are connected by the but the part that we were working on was the removing the bushing from a plate as and that plate is connected to the lead cable in the lead cables alternately connected to the to the coil by work were in appellate court how do we know what this scope of work really means what in the record tells us what it really means i think i read judge white who told us what it really mean much well there was testimony that the that the e p a s did not have to touch the coil not have to work on the oil that's in the rock and the summary judgment record the found that the lead cable in the coil are connected we see we still were not we have not performed any work on that part of the of the transformer we were what about when the crane hold the tamil and the plate that had the bolts connected to it we had removed some bolts from the plate but we did not work on the lead cable or that the coil that that damage was incidental to our scope of work and those those three are connected right so the bushing in the plate is connected to the cable which is connected to the coil that is correct they are interconnected parts and it is that would matter in the now i'm sorry did does that matter to the analysis i think but the district court did was denial but they withdrew their reliance on the your work exclusion this is the particular part of your work exclusion based on the missouri case that we cite that the columbia vs shelf case the court in that case that the statement in that case in the summary supreme court by using the words particular part the provision evidences the intent to narrow the scope of the exclusion as much as possible and other words the subject of the insurers work is defined with great  specificity and we cite other cases where this is a narrow exclusion search shows this policy language they chose to refer to the particular part that i mean the definition of particular as one unit or element of many so it's contemplated that that the scope of this particular exclusion is narrow and only applies to the particular part of the work that the insurer was performing its scope of work on with if the work had been done well this is a classic case where the work was incorrectly performed it was and the work was incorrectly performed but the particular part of the work of the particular part that was damaged was not the scope of our work not within the scope of our work it wasn't in the scope of what you intended to do i guess that's one point we know right that's correct but what if you end up working on something that you weren't supposed to work on i would still dispute that we were working on the component in the components that were damaged our scope of work was to remove external components it's the interconnectedness of this particular machine and the nature of electricity that the parts are interconnected because the case of the the wiring of an airplane as one of the cases that we cite and in that case the court found that even though  and insurance work was to work on the wiring of the airplane and the insurance company to exclude damage to that was caused by fire to other parts and the argument was that all these parts are interconnected but you're saying you were working on one particular part of the airplane even though those you said in missouri case counts when you read that is not necessary i don't think it was for the four or five missouri cases on this do you have the cabinet case that's in missouri that shot and you are and that is the primary case and i think that the language from that case is clear and there's a lot of it and yes better the narrowness of the x i was on the court that's not criticizing somebody else there's a lot of us our reasoning you would only find that that the paint nozzle was was the only part particular part of the insured was working and that would be the only part that was excluded but i disagree with that analysis and i think under our analysis we know what the particular it sounds like you're supposed to do the whole thing disassemble transport reassemble and test this whole big auto transformer and your honor that was addressed in that deposition testimony with and part of the summary judgment  that are the e p a s representative testify that disassemble was a was not really accurate we were to remove the external parts and that all of the testimony really was that we were to remove the external parts we were to ship only at the external parts we we were not shipping the transformer that was that the buyers responsibility was to ship the transformer we were removing the external parts and shipping them you're just going to leave the core there where setting the well is inside this it's about a ten by twelve foot structure that was to be placed on a rail car and shipped to the purchasers place of business that was the purpose of removing these external bushings they  extended nine feet above the transformer and it would be you can't ship it by rail with these external components on it the purchaser actually had hired a different company to perform the internal inspection on this transformer so that's you're almost all well you're i would still take position of the time this incident occurred and that's that's the time that you look at and applying this exclusion the time the incident occurred we were we were performing the scope of work of removing the bush desert argue that we had utter autonomy and discretion over the transformer our position as we were slowly hired in there to perform our scope of work we had to know why we don't we don't have fact finding on this one do even the district court's decision does not address it but transformers the transaction in question that we're talking about it was a mall type our transaction before elegy eat took ownership of it they wanted it tested and then after they took ownership of it they burton pointed out in the transcript there's a seven page contract six numbered one additional with three pages of singles based single typed details of all the things that they were given barely mentions the core though if you look the corps only testing the ground on the core which i think said electrical test it may not even volved touching the core you may do that without messing with the core if you do it correctly that might be correct correct and so let me ask about the damages for the whole house right that's the rule oh boy doesn't that sound like in this case here's what the soft case to look at rogers recognized the fact of what is called a business risk exclusion and of the business risk exclusion the idea of it is that the insurance companies like zurich you don't get to buy a policy to guarantee your workmanship or that your faulty work won't damage the thing that you were hired to work on and in this case e p a s was hired to work on this transform deuced lots of stuff to this transformer inside and outside of the transformer and it is their very faulty workmanship to cause the very damage to the very property that they were not supposed to damage which is the transformer the shock case does two things important for the score to recognize one is recognize the business risk exclusions are not ambiguous and can be enforced and sue so quote in the soft case you cannot so narrowly apply was it only applied to the the cleaning gun that's all i was working on at the time and the court said no we have to at least look at all the things that you are performing an operation on as part of your work what's more on point as your own rulings no landscaping me great big be very careful here you're in diversity jurisdiction there's been there break and sporadic us both acknowledge show off both find the rulings consistent with shaw they specifically are not and in both of those cases what the court this court makes clear is that e p a s argument about scope of work isn't how it works and break landscaping them the insured tried to argue our scope of work was the weeds the grass and that's correct they were only supposed to work on the weeds not the grass well but in reality they worked on the grass they applied something to the whole line right but but they were claiming their scope of work wasn't to affect the grass just like e p a s is claiming in this case our scope of work wasn't intended to pull the coil out of the transformer well i get that the scope of work is never intended to cause damage but when it is your work that directly caused the damage of the thing that you're supposed to not break that's when these exclusions apply well except it says on it at the end the particular part of the property that must be repaired because your work was performed on it right now and it is acutely right he had it figured out what the it is is the key well honestly a lot of these courts look at it in a more pragmatic point of view which is did you enjoy the thing that you were supposed to be working on to protect you but even if you want to go to the head they worked on the coil they pulled it out of the transformer it didn't happen by magic it happened by them attacking yanking it out they didn't intend to work on it but they did in fact work on it they in fact hold it out of the transformer well what is the relevance of their intent i don't think it has one but that's what he p s is arguing that was what within our scope of work what's your bushings were clearly separable from the main part of the transformer right sure that was the whole point of hiring this particular company to do that discrete bit while that was part of what they were doing for sure they actually go and remove all of the oil so in this case if they were removing the oil they accidently lit the oil on fire instead and burnt up the transformer where they then argue that we weren't supposed to work on the inside the transformer and therefore our work course not that would be their work after the oil is ruined there was going to be some testing done by a third party ok so that they remove the oil they inspect they remove all of the extra components whatever might be there the contracts name a specific and there was some testimony that one of the things the contract said wasn't even there but whatever's there remove it so we can transport it you prove all the extra parts we will move the big our including the car right including the core that's aside and then when we get it there put it all back together again but inherent in all of this is remove it all tested all put it all back together without destroying it i mean that's if this case had gone to trial elegy would have been s for breach of contract and failing to do their work in a workman like manner that's what this case would have been and that is what he says supposed to be excluded by business risk exclusion of not doing your job right and damaging the thing that you're supposed to fix if they had you done this yes was supposed to move it on the tray removing the extra components if it somebody else was going to move it on the train the yes so they were slowly in possession of this thing the entire time they were solely in control of it a couple of times both during the disassembly process and during the reassembly process in between those two  they would be in control of part of it while the another part was moved by rail but what i mean the distinction here that that you've got to look at including in all the cases they cite is when you're hard to do one particular mills covered if if e p a s would have caught this thing on fire blown this transformer up and it destroyed all of a t c s entire electrical system in their entire grid i would be in here saying that all of those other damages are covered that wasn't their scope of work that wasn't their job that wasn't the property that they were working on that's other third party property that was damaged by the work not the thing that they were working upon and damage so your but i do think i do think schaaf is pretty much controlled when all's said and done it isn't the case is the circuits down and it's missouri supreme court speaking on it and they do it is six or eight pages there in a row but when you get the bottom line of it it says in the case of multiple reasonable interpretation the more narrow interpretation applies provided that you don't read it so narrowly that you read the expression out of which is what your were talking about in this case when you try to get it down to just the one bush really what a p s should be arguing is that the only thing that is excluded of the handles of the crane because that's the thing we were touching at the time one of that's like the nozzle that's why they don't make that argument because  arguing the that's not what the scope of work was that's not what the contract called for that's not all that they were doing they were hired to work on this transformer and they destroyed this transformer because of what they did to while working on it and that with us right back and break landscaping that puts us right back in sporadic us both of which are based on the story law both of which cite shaw for rely on show off and again both of which rely there is some but not relevant what jay five is a process and jason says what you are working so so jay five can theoretically somewhat get into the scope of work argument because of what your process is supposed to be j six is what it is you're working on but clearly and for sure all of the exclusions within the some point of j are business risk exclusions with the particular purpose of making an insurer not the guarantor of the insurers work which is wh because they destroyed this transformer and in the course of performing work on it and because of that breach of contract and that faulty workmanship they want to pay as a guarantor of their work and that's not what the policy supposed to do  serve is really trying to do here is to read out the particular part language and the district court started out opinion on page one by referring to the your work exclusion and i think if it were your work exclusion  opinion is that the scope of work involved both the bridge and the river below so that cases distinguishable the bright case that the the insured nature was hired to spray the lawn so the lawn was the was the particular part worked on they weren't hired to just spray the weeds or the grass they were harvest by the lawn so i think both of those cases are distinguishable and for those reasons we believe that the particular part exclusion does not apply and summary judgment was incorrectly granted all right thank you for your argument thank you submitted in the court will file an appeal and in due course court will be in brief recess for five or ten minutes and then we'll hear argument in the three remaining