review to the extent that it that i will discuss the underlying court's opinion the only thing i would like to address is the fact that she seemed to focus on a precipitating cause that was the language that she used in deciding the case and i've gone back after that hearing to try to find exactly where she might have come up with that phrase and i'm not really sure where it comes up with good there are many cases that address the auto  exclusion and whether it applies but in this case what we have is something that's not been addressed and in any of these cases that i can find that's the maintenance aspect of the auto exclusion not whether there's use of an auto it's the maintenance of the why did you bring the truck into the building i didn't know begins he gains with it was the one that needed to use that the truck to do the maintenance on the truck my client originally was lighting power i only represent higgins now following the trial through an assign that happened at some point on the truck we're not disputing that the question is do the facts of this case specifically apply to the exclusion to the point that it would apply to exclude coverage in every one of these cases that's addressed this exclusion there is always been some aspect of use or ownership or maintenance that precipitated the need to analyze the exclusion every one of these cases even were ones where they solution was held to not apply involve the use of an auto at some point but when you look at the totality of the facts in the totality of the circumstances in all of those cases the courts look to the conduct that led to and caused the injury and the damage similar to the mt vernon  case versus helping dan's or the child was left in the van for eight hours there was definitively news of the auto at some point before that just isn't here there was a maintenance of the auto at some point before that the question is how does that exclusion in the facts of this case heavens little hands case is that the allegations in the complaint asserted multiple theories of negligence including a failure to maintain a proper census of the children and used in the sense before that you referred to the non vehicular conduct the in all of these cases what you have it is an alice of the conduct and how it relates to the exclusion and every case in which the exclusion has been up well the only cause of the incident is always related to the use of the auto when you have the negligent supervision claims when you have the the bus case the northbrook case where you have the negligent bus routes the failure to train when you have the cases of the you the negligent modification of the seat in the present case which i believe you also concurred in that opinion all of those cases around the you can't separate the use of the vehicle from the damage an injury that's caused whereas in this case you can't the maintenance is but one aspect of the cause of this now there's been plenty of cases after us f and g that specifically say you can't use a proximate cause causal relationship test here but you know in the end that that's kind of where they you try to form around that without specifically using it but the prez case that the mount vernon case all upheld the fact that the us f and g logic that when there are multiple causes one of which is covered one of which is not the exclusion does not apply now here we do have maintenance of an auto as i said i'm not denying that he was in there working on the truck the issue that we have in this case though is that before the maintenance occurred there was negligence the negligence of this man he walked around the entire area he looked he saw the bucket he saw that there was a bucket there of what appeared to be potentially flammable material and decided to use a torch any way he could have moved the bucket this whole thing's out from is prevented that occurred before the mains then he does the maintenance on the truck a spark flies and lands in the bucket and now we have a separate condom that could lead to the cause of the fire and that he's attempting to move the bucket and we don't know sounds way from his deposition it almost sounds like a keystone kops routine reese picking up the bucket moving in any event that the whole thing goes all over like the building on fire but the conduct of the man from higgins the two gentlemen from higgins and causing this fire it's not soley the maintenance you can't really say that only the maintenance is the only thing that caused this fire which is what you can say in the north pole case in the in the pres case all of the negligent supervision cases you can always say without the use you have no gamble but here we have other causes and i think it's very important to note that the us f in geologic is specifically  the child doing that in supervision that's where they went to the intervening to act was there an intervening act in that aspect of us f n g appears at least to me to have been overruled by north broken over to be held not to be the way they analyze these cases and all the ones that have been subsequent to it but the prez case and the mt vernon cases specifically said that that aspect of us f and g when there are multiple causes one of which this covered one of which is not i'm not trying to equate the facts of this to the  law when there are multiple causes at which again that is exactly what we have here i think one of the easiest ways to boil down all of these cases in which the exclusion is up held or overturned i'm sorry you know not held to be to exclude the  the injury in all those cases if you were to ask the question can you prove an underlying tort case without ever mentioning the auto or the maintenance could you ever prove a case without ever addressing the fact that there was an automobile involved or maintenance of an automobile involved if you can it prove a case on theories completely separate from the automobile itself then i don't think that the exclusion could apply and in this case that's exactly what we have and i know that to be true because i did prove a case in this specific case by never mentioning a truck existed all i said and all the testimony that came out of the trial was that this man used a torch which little bucket on fire and then that bucket the attempts to move it led to the building starting on fire and being completely destroy this case is able to be proven and was able to be proven to the trier of fact without ever mentioning that there was a truck involved you can't do that in the negligent supervision cases you can't do that in the bus case you can't do that because the only way to prove that a k that an injury occurred is to prove that there was use of the auto and i'm not saying that that's that i'm trying to change the law or modify it i'm trying to take all the cases and consolidating figure out what's a way to approach the one of these is going to be fact a term and in this specific case we have facts that go outside the maintenance your situation of a truck or a car falling during the course of the maintenance that is that would clearly invoke the policy if the spark landed and hit a gentleman in the eye and he claimed injury as a result of that they're clearly arises out of the main it's because you you can't separate the two because it happens right there but in this case we have all different facts that in this case this gentleman knew that the bucket was there knew it was potentially flammable didn't move it then a guy using a torch and the only thing is while using a torch to cut this he's put the spark in the eye you know the more i think about i'm not even sure that would be as good of an example because i think there's still an argument that the exclusion wouldn't apply if there are other causes and that's the key is what i'm talking about here the other causes but you know going back to your point of writing the exclusion of the youth of the out of the policy the case law is clear that the theory used is not what the term is it what determines whether the exclusion applies otherwise then i think that you would be correct any place to come in alleging any theory it's not simply the theory that i allege and that i can prove that determines whether the exclusion of pinus but i think when you look at the theory that is out there in th causes that are related to it and how they relate to the exclusion then in this case you do have certain causes that are completely unrelated and i think that goes back to your statement in the mt vernon case the non vehicular condom you know i don't have you could say that the that the failure to move the bucket is not particular conduct the efforts to to put out the fire is not vehicular conduct the efforts to the picking up of the bucket and moving into an area that probably exacerbated the fire that's not vehicular conduct we don't have a situation where all that happened is torch on truck spark walk away it's not that simple there are many other causes in this case as to how this incident occurred as to the the use i i think that all the arguments are in the brief and unless there are specific questions i can address them but i you know the issue here is relatively simple does the exclusion of fine i think i've made most of my points if not all of them is that then once you have questions on then i can move believe the ladies with their permission you know he knew that he asked to use the garage it was in the middle of i believe january or february very cold outside he asked to use the garage but the gentleman from white power wasn't there at the time and said yeah you can use my garage facts of that specific fact is that he didn't know exactly what was going on but again that it's always been if it's been a few years since i've looked at that aspect of the fact i don't  defenses of waiver in a stop which are completely separate from the auto exclusion and i think that the judge improperly denied are dismissed are we going to stop the claims in this case the  country mutual put one adjuster on this case country mutual insured both higgins and like power they sent one adjuster out to the scene that adjuster talked to the higgins gentleman and the light and power gentleman said to both of them they were standing there and they both testified to the same thing the adjuster stella came out and said and was representing both sides of the first party claims and told bill if this isn't covered under your policy she says to like in power it's covered under his policy so you'll be covered based on that she said go ahead and throw everything out i've seen everything so they documented they stopped their documentation at that point threw everything away he did she know at that point that there was a truck knew exactly the cause of the fire she knew that there was a truck and all the truck was still sitting inside the garage because when the fire happened the truck was inside with the gentleman from higgins couldn't back it out so the truck was there the damage to the building that occurs this you know that that that  but she was told by it and we've seen this in the claim that she was told by mr higgins and his employer that they were doing maintenance on the truck so i mean there was no doubt that's in the fire reports that i don't believe they were properly submitted to you but it is in there correct ok and then at that point is when a letter i think it was a week later after she made these comments and everything had been disposed of that country mutual sent a letter that said we're denying your claim on higgens policy for your third party  by country mutual i say to the fact that we had an inability to prove something up as i have to show a detriment to my client and that's the detriment that occurred but the statements that were made by country mutual specifically stating anything that's not covered under your policy will be covered under his or statements that we relied on in took action based on those and then again the detriment occurred when we couldn't prove up certain things because we didn't have documentation of the damage so it m arguments i think that the judge was wrong in dismissing those it seemed to me that she can conflated the issues of the auto policy exclusion with whether or not either from the defense is applied  which is the exact opposite of the way this is looked at but if you decide that there is no coverage under this policy because of the auto exclusion then are affirmative defenses of weyburn asop will become that much more important because if they total package of this appeal i agree with that however as a matter of principle i felt the need to address it when country mutual insurers both sides of a question like this they must protect that attorney client privilege separate and apart from the fact that they represent both sides when country mutual's attorney was hired in this case he was only hired to represent country mutual on a claim that it is that this particular claim was not covered under higgins policy in transferring this case to their it's funny they took all of the claims file from the light and power file and sent it to their attorney country mutual's attorney argued all along in this case sides of this equation they cannot take advantage of that fortuitous position to then tender even attorney client privilege material of my client over to the other side and i think the dad position is something  that i think that's important it's very important because of the the size of many of these insurance companies that they end up on both sides want to be cases and they insure both sides they don't have unfettered access the attorney client privilege extends to those comments made to your insurer regardless if the other side is also insured by that same company and other net i just i'm throwing it out there to think is a matter of principle it's a very important aspect of this and i don't think that the judge into nine and basically when he denied a protective order his conclusion was there's really no prejudice here it's just kind of a non issue so don't worry about it but he did agree in his opinion that the transfer of the information to countries attorney and the transfer of lighting powers attorney client privilege material to others day was that before me instead i guess an enclosed space because obviously it's colder outside and using a torch to replace a muffler mr higgens actually his brother david higgins is one of the principles of light and power so they're the two businesses they're brothers the president complains leave on the fact that motor vehicle was involved in all this is one of the complaints and initially they did that well i think what's instructive on that issue and i agree some of it it's interesting the timing the supreme court and p converse being negligent not extinguishing the fire and not controlling the fire at night and using the trench too close to the bucket all these things that but for the maintenance on the vehicle never this fire never would have happened you know to make it to something else was involved and make the argument  with the supreme court encourages them to do and so we didn't have an attorney to use that information and that's that's that's or that the red herring this whole thing is privilege information is there the trial court here when granting the motions of there's light power the state from a lot of policy the business interruption coverage were all or all paid there was covers provided but not on every policy never had a boat policy when the private you could give them any policies through the policy covers all its operations you know with the language was different of the policy and me and the fifth x it was different it's but for putting a child in a band it can die eight hours later the only argument made by country in their brief and the only argument made today is but for the maintenance this doesn't occur it's not that simple as justice when pointed out it's not as simple as but for me and so currying this incident doesn't happen there are many other causes here were in those other cases there were not that's the difference between this one and i you know the only argument that i've seen in all the briefs and even and counsel statements but for the maintenance occurring that doesn't happen and the argument is just not that simple the i just want to touch really quick on the aspect of the statements made to stella counsels arguments is that there is attorney client privilege essentially doesn't attach because there was nothing useful within the statements that said that's a backhanded way of looking at attorney client privilege the usefulness of the statements what came out of the statements is not what determines whether there's an attorney client privilege that attaches to them is wrong as the person is providing information to their insurance company about the facts the attorney client privilege attaches doesn't matter in the end that they chose not to use it doesn't matter in the end that it might not have been relevant to them in their case the attorney client privilege attached so that's all i where we are today that the vehicle charge still means that issue and these provisions are months some of the most sweeping prohibitions on firearms floyd raise other issues in the brief i believe that the court's interest maybe in this issue i would discharge which is the simple possession of a loaded weapon charge from that heller is whether the right to bear arms exists outside of the home and all the history of the text of the constitution indicate that the right that the right doesn't simply and the basically we should overturn the supreme court where you have to say look into a crystal ball and you sam asking other i'm asking you if you'd simply draw the logical conclusion from from heller versus district of columbia there is no supreme court precedent which stands in the way and i am asking you your hon the size case that's that's discussed in the reply brief and that means we look to the history of the right and here the entire history is on contested from the fact that blackstone said it was fundamental at the time the english bill of rights but as an english feller right yes yes and he another reference and how it was that the right was fundamental to english subjects at the time of the fountain and we tend to forget that at the time of the founding the the framers were english subjects or at least had better couple of years before so that the  right to bear arms are in the bill of rights do not directly by the states neither of those has been overturned as to the right to assembly for example to young versus oregon came down which said yes it doesn't directly by the states and nor is even part of the privileges suggest were bound by the supreme court's interpretation of that in saint but who and you know there's another consequence to the funding that the right is for no not all greed that is stopped short but we have a test for what happens when the court stop short of saying it's on the right we apply the test is a deeply rooted history tradition isn't necessary to an anglo american regime of ordered liberty and if we find that's the case that the right is fundamental and certain consequences attached to such a finding that you know for example it means that we have to subject it's more than your rational basis review otherwise we are it essentially enduring that choice to place the right in the constitution no that's ahead i would suggest that this court shouldn't wait for mcdonald to address the issue while it's perfectly possible that the us supreme court will decide mcdonald next monday it might well be the case that they went to the fall to decide it it might well be the case that which is this provision ok keep tax at least some right to bear firearms yet we will still subject it's rational basis review and that means that we need some kind of higher standard i mean what's remarkable about this particular provision it's simply you know bars the possession of a usable weapon in an automobile and it doesn't make you know walt it's charged as a handgun in this case the provisions that he is sweeping off this week and you know all firearms i mean and even holiday you know the other purpose as ervice in a militia i don't think one's doing that in one's you know kitchen or living room hunting that's correct the entire jeep history here which is you know you know early english rebellion to british game laws whatever that is it's not in the home but you know at least you know there's certainly it's not you know it's not the case you know for the home that sure perhaps the case that self defense in that in the home is a slightly stronger interest in self defense outside th the right itself the right is a right to bear arms it's you know no more different then there's other purposes for having the right you know such as hunting or you know i suppose militia service or as a latent threat is a check on tyranny but that  but the right that the framers just put in there is a right to keep it in their arms and either your honor if you want to reach people with money sometimes there's another statute that can do that that shows the failure of the tail of any sort of tailoring zoe austin all have said this applies to everybody yet the marriage it says it's expressed the applies for no criminal intent existed at all right and even if you're going after gangbangers not only in this case is likely not one he was actually acquitted of of being a street gang member if you know possessing a handgun you know it's one of the consequences the state's attempt to charge this through sixteen different theories of how to belittle this actually discussed in america is what was going on you for the good morning your honor once again my name is bill tough and i am an assistant state's attorney i must confess i am nowhere near as well versed on the issue of second amendment as my opponent is nonetheless i think he is as wrong as wrong can be about this the statute in question carries a very strong presumption of constitutionality in a party challenging that stature has the burden of rebutting that presumption this court has a duty to uphold constitutional idea the statute that has recently possible to do so not only is it possible to do so reasons we hear i think it's absolutely essential that the heller opinion specifically defines the question to be addressed by the court is whether the district of columbia could prohibit possession of any usable handguns in the home whether that violates the second amendment to the constitution the issue before the hell a court f t was predicated on two specific things that do not apply in our statute one it was limited to the district of columbia and there's no oh every  dresses is the the possession of a lawful firearm in the home for the purpose of self defense the court repeatedly says that he issue is whether it is permissible to keep the gun in the home to carry the gun in the home it never goes beyond in the home it never it specifically states it isn't that it's not applicable at this point to be to anything beyond the home but i want the right to bear statute in question is written so as to be perfectly consistent it's almost as if it was written after the heller decision it specifically accepts the possession of firearms in the home place of business or on one's property it the heller decision or that the statute simply isn't covered by the heller decision it just did in that the decision is a very narrow one and until the supreme court's you see fit to broaden it the presumption of constitution the issue of whether it is a fundamental right has not been addressed whether what the issue of which scrutiny has not been addressed incorporation issue is not better trest we're dealing with a very narrowly charge was given a separate sentence so there's no reason to think that the presence of a lesser included should one be vacated would have any application whatsoever on the sentence for the aggravated discharge which would remain viable right then the burden falls to the state to tell us why they aren't burdening the right and to show that this statute is necessary even if this court or he decides that we shouldn't you know vacate the those convictions now at least you can you know order supplemental briefing especially if it don't comes down the next few weeks on the question on that question of decide where the burden is and figure out how to solve the justice wanted the speaking just for myself and  and there's a reason the published opinion in the country has come out with no real right to carry arms is only a right to carry them from the living room to the kitchen because the hundred pages almost all hell or rather that there's still