potential judgment creditor's of us tire as a result of us tires filing of a bankruptcy their recovery is limited to whatever insurance proceeds are available so there are only avenue of recovery against  us tire and wheel or at least for covering anything from them is through the insurance policy which is praetorian we're here because praetorian sold a garage liability policy to a used tire dealer that contains a used tire that basis and help me understand whether that is something tate can do given that they don't really have an interest in pride torrens duty to defend us t w against states claims they have to point your honor they have certainly an interest in opposing pretorius motion for summary judgment i think we're clear there but in terms of the motion for partial summary judgment on the duty to defend the duty to defend really is just potential for coverage tate and are interested in coverage obviously they want to again that he ultimately under this policy therefore if there is is a duty to defend that's an acknowledgment by the court that there is a potential for coverage under the policy if there is a potential for coverage under the policy then there is the potential ability to recover and density once there's a judgment against us tire and wheel so that's why i know it's framed as the duty to defend part of it is to impress upon the court the very broad standard of the potential duty to defend which again equates to potential for coverage that was the basis for filing the motion for partial separate judgment on the duty to defend issue because they us the appellants could not have filed a motion for court gave relief from the state to the appellant so that they could pursue the state court action against u s tire and wheel it to recover whatever ultimately to recover whatever insurance assets there are the trial court in los angeles state that action until after the outcome of this ninth circuit appeal i think praetorian moved if i recall not part of that action but i believe praetorian move to say that action the toward action until after this appeal has concluded ok thank you you're i don't understand why there's been no assignment the duty to defend to take right and there was no discharge in the bankruptcy yes  so the tire company is i was going to say alive and well as a law i was not well in so they have an interest in the do you defend in they've made no assignment how take have any interest then in the duty to defend in therefore is it even a proper part of this case i believe the duty to defend is a proper part of the case there hasn't been an assignment your honor us t w doesn't have a real interest in the duty to defend in the sense that any recovery against them is limited to insurance assets that are available so it's not as if they're going to have personal  all one way and that i understand is the insured that's the duty of and again i'm looking at it from the potential for coverage perspective it's clear that the appellant's here have an interest in the policy i think that's very clear the issue in terms of the duty defend is a determination by a court that there is a potential for coverage out of the policy clearly that's an issue with respect to motion for summary judgment praetorians motion for summary judgment pivots on the duty to defend again again that he can't be determined at this time has the duty to finn is broader than the duty to indemnify and so if you went on that then you win on everything if we win on the issue and if we win on the issue that there is a duty to defend that doesn't necessarily determin indemnity that's determined after there's actually a judgment against us tired we'll then that that will have to be litigated that issue but in terms of the duty to defend we had to argue that in opposing the summary judgment filed by praetorian because if we didn't oppose it on the respectfully disagree with that your honor even though the inshore gets defended the issue is to get their trying to seek determination that they have no obligations under the policy stand so the issue pivots on whether there's a potential for coverage that's really clearly what there is is there a potential for coverage that's measured by the duty to defend standard which is very well established but good you know certainly this court has the ability to see this case only as vanishes so the reason we're here to get is because the type of exclusion that's at issue it's clear that there's factual disputes as the district court acknowledged that the owners of the short said we never signed the exclusion we never knew about the exclusion fifty percent of our business involves the sale and installation of new tires and had we don't about that exclusion we would have purchased the policy which makes sense so in terms of the potential for coverage and why it's covered the exclusion itself focuses on the nature of the risk posed by use tires as a as opposed to new tires we believe the allegations in the case involve conduct on the part of us tire and wheel said it doesn't go towards the nature of the tires themselves obviously there's defect allegations against the manufacturers but against us tire and wheel the focus is on the sale of installation of the wrong type of is that because of that exclusion they don't cover liability arising out of the sale and installation of only used tires and recap tires recapped tires are not at issue here so presumably if they were new tires if we were dealing with the same type of case involving negligent sale of installation but they were brand new tires we wouldn't be here so did did occur carlson was the tates expert yes your honor  testified that independently the wrong size and type of tire such as occurred here could have been indeed been a cause of the rollover even if the wrong sized and wrong type tires were new yet his testimony as i recall your honor which is in the record is at ninety nine and one hundred pages ninety nine in one hundred was that the age and the size of tire would have contributed to the tire tread and outer belt separation and that the the tire placement and type would have contributed to the rollover that was as well a age is covered by the exclusion you have to acknowledge right it's a certainly a better argument your honor yes although technically your honor i understand the point a tire can be six years old or never used so but i understand the correlation between age and used  in favor of coverage that's what california law says it's yes that's mirage versus farmers for example says that exclusions are strictly construed against the insurance company and liberally interpreted in favor of the insurer so it's just a follow up on edge murphy's question as you say carlson the expert testimony was that these other alleged at logan activities contributed to the accident but he didn't say that he that  s tire and wheel caused this loss regardless of whether they were used or on used tires that's it i think nine fifty three in the record so he said that these negligent acts caused the loss and this is so regardless of whether we were dealing with used or on used tires i believe again that's nine fifty three but i'm still unclear is it a combination of size and type or only size or only type that could have contributed to the cause or been an independent reason for the for the rollover i believe your honor that the rollover as i read his report he testified clearly it was type and placement because the role but if you look at his report it's also type in size because the type of tire was an all season tire here and all season tires place higher lateral pressure on the tires therefore you needed a lower profile tire and so i think and if it were going to be a higher profile tire like this would have to be all terrain which this was not so i think it's a combination frankly your honor as i read his report again i apologize your honor yes and right there's tribal issues along those lines yes because there's tribal issues along those lines california law is clear that there's potential for coverage there's a duty to defend whenever there's a factual dispute that's relevant to coverage by definition there's a potential for cover li there for a duty to defend and here there are a lot of factual issues there for that reason the summary judgment by praetorian summary judgment should not have been granted because i don't believe that you can say by there's you know undisputed facts which  establish there's no potential for coverage just the opposite there's clearly factual disputes here regarding coverage which triggers a duty to defend did you did carlson's testimony also combined the type of tire in the placement of it yes placement has to do with age though doesn't it because if you have different aids tires he put the anger on the front of the younger on the back for placement in the true i would address it's the newer wheels do tires are supposed to be placed on the back and so i can understand the correlation with with why you'd say that used let me just say though again a tire could be six years old and never use a tire could sit there in fact so a tire company should have in their inventory log on new tires how long they have been in their inventory so that they can safely place the new tires had been in and torrie for three years in the front i think those in the inventory for five years on the back is that your theory yeah i think your honor that the age of the tire could be known in the newer tires place the front but the important thing is here in terms of the exclusion itself and if you read praetorians position it's the nature of the response center by use tire as a used tire when you put placement that has to do with human error and not putting the newer tires on the back i understand why you might believe there's a correlation but because exclusions are narrowly construed and liberally construed in favor of an shorts i think that there should be a potential for coverage even based on that placement theory and again this is again all about a potential for coverage and this is really about hughes tire exclusion that was placed on a policy ensuring a used tire dealer and without any kind of knowledge without any awareness on the part of the insurance that this exclusion was part of the policy now understanding the procedural issues that judge murphy brought up so there was no assignment here very direct but you brought the teats in clearly because as i understand it because they clearly have an interest in this policy act under california law you wanted them in you wanted them in this case i wanted a binding adjudication that there was no coverage whatsoever no duty to defend as to the policyholder no duty to indemnify as the policyholder and binding the potential judgment cr nobody ever raised any issue with that with the district court is that correct no because it is under california law accepted practice to bring in the underlying plaintiffs as a stakeholder an intern in a duty to defend situation in a duty to in establishes whether there is an obligation to defend the policy holder but if there is no duty to defend there is no damage duty to indemnify if there's no duty to defend and that's established at the outset there is no duty to indemnify and that's what insurance companies typically do with state and federal court to bind the potential judgment creditor's as occurred here so you do obtain an adjudication of the duty to indemnify because there is no potential for coverage it being case when there's been no assignment of that duty to defend is not relevant as to tape and are certain is that eleven five eighty does apply if there's a judgment creditor and therefore  not a participant in that claim it has a an interest in the outcome because if there is a determination that there is no duty to defend or say there is no duty to indemnify and but doesn't require assignment from the insured the duty to defend you no order for tate have any interest in that in the defense yes and the reason that i'm framing the question the way i am is the duty to defend is personal to the insured but you bind the potential judgment creditor by including them in the lawsuit and the declaratory relief seeks a duty determination that there's no duty to indemnify so they have a direct interest in that and they're properly in their  interest is only limited to the duty to indemnify which is sort of raised which is part of the correct but that is subsumed by a determination there's no duty to defend right is there any case on point in california that has a similar procedural posture legions of them that address naming a potential judgment creditor naming the underlying plaintiff so you can obtain an adjudication that there is no coverage no potential for coverage and i think we've cited that in our brief and i can turn to it but the issue as your honor points out is truly the duty to indemnify as to tate's but because of the court's finding below that there is no d defend and they had an interest in that determination because that would per se terminate any duty to indemnify the properly before the court much like the expert carlson felt hate so you did so the only expert testimony we have here on causation is from carlson that's correct and that's because carlson's testimony even taken on its face as extrinsic evidence doesn't obligate the insurance company to defend because it doesn't create a separate instrumentality necessary to place this claim outside of the broad use tire exclusion so pleasant counsel says that the the expert if i heard him right that the expert did say that the negligence in selection placement of the tires would have caused the accident whether or not the tires were used or not is that correct not quite correct what he's saying is there are a combination of factors that cause the tread to fail what caused the accident was a four to five foot tread separation on the tire that caused the explorer rollover so whether it's the loading the selection of the size of the tire the age of the tire the used tire his testimony is the tire tread separated the tire tread is per se a four to five foot strip that comes off of the used tire that was sold by the insured to the underlying claims to the tates and this is why the issue of concurren causation is so critical because there is only one instrumentality and that's the tire failure and the breath as your arm pointed out it isn't just limited to if there is a used tire that fails and it would have failed if it was a new tire the facts of this case drive whether there's a duty to defend or indemnify and this policy excludes both defects and installation which would be the tire itself and the man made factors of arising out of a defect or failure of one or more tires and then goes on about the united states talking about the failure of the tire which was not new when sold or installed i install a tire which is not new and that's undisputedly the fact here and i have a bodily injury that arises out of that failure as is the case here than the exclusion applies unless there is something separate and apart from the tire and if you install a tire that's not the right size not the right tread and it's a new tire know if it's the wrong size tire it is the wrong placement of the tire it still arises out of the failure if you give me an awfully broad reading well arising out of under california law when you're dealing with exclusions arising under gets a narrow reading no arising out of an exclusions and under the coverage grant you get i'm i understand what about my understand and partridge and i couple other cases you give a narrow reading to exclusionary clauses that's a different issue than arising out yes you interpret exclusionary clauses more narrowly than you do  covering rand's the words arising out of any both exclusions ending coverage grants is extremely broad and if you look at the site you feed case it talks about having i think you're giving him probably a broader reading than than i understand california law to get arising out of under california law in an exclusion and if you look at all of the cases that cite it and so you feel in shepherd eyes in the fifty or more cases that follow it doesn't know that he was having any connection with or relationship to we tried a different way in terms of notification to the insured about what the exclusion is the title of exclusion is important correct so you need to put it in bold print there are all caps like occurred here right as occurred here yeah all right and that caption says use tires in a recap tires excluded it doesn't say anything about exclusion for insulation does it the caption is meant to draw the attention to the reader of the text below so once you draws attention it falls out of the and this is a broad law and where in the text does it exclude the negligent acts of installation or selection of the tire if it fails and it was here i have one tire whether it was installed or sold it is the tire that failed and whether arises out of separate acts of negligence as you have an evanston versus attain and the cases cited there in the really address what does it require to have separate instrumentalities and there you have a kid runs from grandma's care bind the car grandpa runs over the grandchild the argument as i have the negligence of wh absolutely unrelated to the vehicle she's not driving and she is not the ability to use that operator control and i've got the grandfather in the attempt was there to invoke coverage under the homeowners for the separate acts of negligence in the court said no you have one instrumentality you have what caused the tire i mean what caused the rollover that's the only question that matters whether it was negligently selected negligently installed the failure was of the use tire and why does an insurance company not want to write that risk have to construe it in the light most favorable to the nonmoving party but he doesn't come up with them and if you do that and i and i as i read partridge you read the exclusions narrowly i don't see why he doesn't least his affidavit does in the least create a genuine tribal issue of that and the problem that i had with the district court's order if you go to his is a border he says at the end  here any of the alleged negligence could only have caused the accident to occur first causing that by first causing the tire to fail and because the used tire exclusion is not limited to injuries caused by tires status is used the fact that the accidents immediate cause was the tires failure brings defendant's injuries within the used tire exemption for liability arising out of a failure did what he's doing is making a factual determination and that's not proper on summary judgment i have read if you were making a factual determination what he's really doing is making a legal determination that there are a multitude of things that two separate invented cars if you have one tire failure and unless the two causes of the loss are unrelated there is no dependency between the two partridge doesn't come into play and partridge actually says that so it's not a factual determination it's that whether it was loading or selection of the tire what did he do with what did he do with with carlson's testimony arsons testimony simply can't you can't just disregard it no i think he's absolutely correct that the ultimate result is any possible negligence on the part of us t w is intrinsically linked to the tires a failure can possibly make a finding like this in light of current at the moment because the only issue here for coverage purposes is there something that is not related to the tire that has to be independent of the tire to trigger the partridge analysis his conclusion is simply carlson comes up with a myriad of factors of why this tire failed what is the cause of the accident the cause of the accident is a strip four or five feet long came off of a used tire he doesn't say anything about that the four five foot strip came off of some other tire or that the accident occurred for reasons unrelated to the tire for example he talks about criticisms that where you place the tires as your i was pointing out whether there are three years or five years old all goes into the ultimate event which is the tire separation so the court below the trial court was correct in saying there is one cause of the accident while there are a myriad of things that may have gone into that they're not independent and separate from the tire much as you have in the farmer's cases or evanston or indeed partridge where you analyze what caused the accident there's one single event as carlson acknowledges which is when this tire shreds when explorer is going down the freeway at sixty miles an hour it goes into a rollover ok thank you thanks for your  time i know i only have a minute and i believe there are factual issues here i believe the declaration of denis carlson creates factual issues i believe you just can't look at this as praetorians looking if this is a failure of tires this was a failure a tire in a rollover accident and dennis carlson gave opinions regarding what negligent acts would have caused the roll over in my view that is a concurrent cause issue that is the partridge case and i believe there are factual issues and that