it please the court mr miller my name is mike morley i represent the defendant and appellant owner's insurance company in this case and i would like to reserve approximately five minutes of my time for  rebuttal if i may but you have to monitor your own time because if you don't sit down he will understand i understand i just want to preface my remarks your honour's by saying that we live in a dangerous world today in north dakota i think the percentages are fifty perhaps north of fifty that are mobile accidents are alcohol related so i do i don't believe there's any question or issue with the fact that sober designated drivers play a very very important role in our society today there are just too many drivers driving impaired and intoxicated too many accidents that result from impaired drivers and it's our position in this case that what the district court has now done twice and this is a nd appeal to this court of the same case it's our position your honors that what the district court has done in this case is penalize a sober designated driver samantha denial and punish her for trying to be careful and get people home or back to their their their place of residence and where they wanted to continue partnering parting safely and the court has in fact rewarded twice now bad choices and bad decisions of a young intoxicated woman amy h as this court knows as i just mentioned this case is the nd appeal of this action this court heard the st appeal in hilton versus owner's insurance company eight hundred and sixty nine f rd six are we just looking at a factual determination and i have a lot of respect for judge eareckson i want to say i i knew him as a litigator i appeared before him when he was a state district judge i peer before number  times when he was federal district judge and he's now a member of your your bench and i realized that judge erickson said at conclusion two in his conclusions in this case that did not was the only person in the group that was passengers from forseeable harm denotes quote was greater than any of the passengers due to the following this is conclusion ten c she had the greatest ability to assess danger now i know a judge  this court reversed vacated and the case was sent back down to judge erickson it was not retried he was simply ordered to make new findings of fact and conclusions of law well i think we left it up to the district court how to handle it but that's what the that's what the court entered and that's what the end but what the district court did the nd time your honour's was the exact same percentages of fault against the three principal participants in this incident namely samantha didn't all amy help her and joshua jeffrey that he did the st time he did not change the percentage of all one iota change any of the other factual findings well he he made in your view it in and again with all due respect to judge or they are not significant i believe from a fair assess danger i e she was the only sober one in the group i think a fair reading of judge eriksson's conclusions and findings after remount still lead to the indus capable conclusion that he did on one and then there's another i think just a little twist a sober designated driver and those two different things a sort of well not in this case because she was sober and the driver she was a sober designated driver the t go and an aunt and you know you can't i don't think you can separate them in this case so i would judge erickson points out the do not was the only sober person in the group and he also points out amy h this court that he his decision his conclusions were unduly influenced by mr knowles status as a sober designated driver and and again i know this court will give deference to judge was the only sober one and she was the designated driver in that case we also contending that the judgment is not supported by the greater weight of the evidence and so we're asking  exhaustively in our brief but essentially this group was at a party the started out in mayville north dakota at about eight o'clock one night mr norton drove that group over to an apartment owned by the name got in the car three in the front seat including the driver missed and all two in the back seat exhibit a lone wolf and amy hilton or both got on to the trunk of the car they knew it was going to be driven and moved because they were going back to  we're going back to lone wolves she refused and she said no it's going to be fine and they were on the back to two of them on the back having a having a good time taking selfies watching their hair blow in the wind they were drinking alcohol and they were there was music from the inside of the car and they were actually swaying the backs receded to the back window of the vehicle actually swaying to the music as they were driving and there were there weren't any as a cruel malicious a drunken passenger on that th turn he didn't grab a part of any of the vehicle but he pushed down and missed an all to right leg and that caused the accelerator to speed around that th corner causing mr knock and exhibit your lone wolf to be ejected from the trunk of the car and they were injured so it's our position your honor that not only did judge erickson continue to apply a heightened improper duty on missed an all out as a designated sober driver but under the facts of this case they simply do not justify or bear out an assessment of liability a missed in all of three times that  middleton who had the last clear chance there was room inside the car she was told to get in the car no one forced her to sit out on the trunk she had the last clear chance to get inside that car in a safe position she chose the position that got her hurt in the end and according to the evidence mr not was doing everything right she was going slow proximately fifteen miles per hour slower around curves she was constantly looking in the rearview mirror back at the two young women sitting on the truck to make sure that they were ok she was sober she was driving fine she was driving carefully she didn't want them there but they chose to put themselves there in a place of danger and only because fault is fifty percent or higher compared to the combined fault of all persons who contributed to her injury she has no recovery so her fall to make any potential recovery in this case has to be less than fifty percent but i'm not i'm not basing my argument necessarily on the workings of the under insured motorists law but that would be the effect if she was if you don't know it was forty five and jeffries was thirty and all should be the lowest because she was driving carefully this court made specific findings in the st appeal she was driving the vehicle in a hurry i have only said in the st appeal i thought that owners didn't contest that she was at fault to some degree without wrong or i guess i suppose that's not wrong we do contest that her fault should be enough though to obtain law obtain a recovery for the seller so we seeking what you want new trial i wouldn't know they're asking for a new trial and again judge erickson has made findings twice and you know he's he's now full time on the circuit you are a new trial new judge new wrote in his opinion which is pretty clearly that he did not consider mr not being a designated  well i heard in real irony i'm arguing we should rely on the opinion and in particular the findings in paragraph ten sober and she was the only sober person know that that's not asking you to start the clock running from the time that she got into the car and started the car the time starts to run from the time occur being outside the car with people on a trunk saying you're not the car i would not start this kyla not move this car as long as you're there she didn't do that she got in the car and he says doing as she can as long as she can to get these people to where they need to be not true she's in a hurry to get back to grand forks for a bully she had total control up to the time the jeffries pushed  voluntary intoxication can be considered and determining whether intent can be arrived yet that's what i really judge your ex in bringing that into the discussion that part of the law that i case law but going back to his actual conclusions aside from emphasizing that whether she was designated driver or not had nothing to do with marriage decided he goes on to say that until jeffrey's interfere or she was an exclusive control of the vehicle and then ten he he went through each of the individual acts that she could have chosen to perform which she did not do which would have prevented this tragedy this difference of opinion it talks about one hundred north dakota law that includes not only negligence but also the assumption of arrest right how would you assess the district court assessment of the assumption of risk between or among the were the factual basis that supported that prong of the fault analysis well i don't have them right in front of me now but he did detail what her rats were that could in that precarious position that she ok then i will give them a car i will start the car and i will take you back to the other apartment the she assumed the risk of what might happen with a group of almost half a dozen intoxicated people  situation can i as you have said a couple of times that you know it was in a hurry to get back to another town but is that she i know that there was a fact finding that she found it difficult she was irritated is there a particular fact that judge erickson found that and she was in a hurry to get someplace else other than lone wolfs apartment you know at this point after a number of volunteer to be the designated driver she's got four drunk people and two of them won't get in the car what she supposed to do i don't know the cheap pant to be the designated driver is that is that in the transcript i'm clay out on the road in opening in providence before you get to the area to broadway that's not what this is a bot are you prepared to say that an agreement insurance company doesn't like the outcome they think and that a huge cost in the region of regional resources are you prepared to deal with  st time we concluded there was a legal error and the argument here is that there's still a legal air because of the imposition of a heightened duty on the person who are sober includes no legal error their argument legally or when the judge who heard the case then specifically did not consider her status her claim status  designated driver i told them it was word i asked that you take them as word when he said that she was more capable than others because she had not been drinking to determine the extent of the danger that preceded getting into the car but that finding is right there in paragraph ten where it is it begins with choosing to start the vehicle and then end things with failing to take adequate measures right it's a statement of fact does that account to amount to her then being the designated driver does that open the door apparently for as mr morley says rewarding drunks and punishing sober drivers i don't think so the you know i just turned sixty six i'm not sure i'm all that familiar with that term but i think that's mr miller's phrase for she was in a hurry to get back to grand forks and therefore she drove carelessly it's not in the record in fact the findings in the record at a denim seventeen finding forty nine dollars by judge erickson are quote despite jeffrey's erratic behavior to not continue to operate the vehicle at approximately fifteen miles per hour when the road was straight and slowed down to make the turns close quote those are the facts that's and those are not in dispute and that doesn't sound to me and i don't think it sounded to this court on the st appeal that that someone in a hurry to get back to grand forks for his so called booty call and i did not argue at the st appeal my associate did i believe this same issue came up then and mr miller was shot down at that time as well and i'm very surprised that he would try to mislead the court again thank you a