thank you your honor may please the court my name is gayla moto i represent appellant employer's insurance company of wausau who i will refer to today as well so i'd like to reserve two minutes of my time for a bottle please and thank that would support the district court's judgment why these records judgment against washington should be reversed to came to mind commonsense is one of them and the other one is food truck case which i'd like to start off with this case as we see it is controlled by american states versus travelers that's what i would call the food truck cases we refer to it in our brief the facts in that case are analogous to this case in the sense that you had to see g l policy in an auto policy both covering what was a food truck which was a piece of mobile equipment that last arose out of a out of a splashing of the hot oil on the victim in the back the plaintiff in the back while the photo food truck was on the road making a vase a vase of actions dispute between the two carriers the auto carry american states and the c g all carry travelers a rose who is to pay american states paid for everything defense and i contribution from travelers in that case the court of appeal determined that you have to look to the core functional identity of the unit that's this involved in this in the food truck case it was a mobile kitchen that mobile kitchen while on wheels while uses the platform of a vehicle to go to and from its its place where it serves food is the core functional identity is really to serve food at a stationary location the same is and that's what the court said you have to look to when you're looking to complementary type insurance policies where you have an auto policy that covers transportation risks or auto risks and you have a c d r policy type policy that covers operations or  constructionists in this case you look to the core functional identity that case relied on alpine versus plant shot that was this is a live case where a truck was outfitted with a scissors left lifted people and equipment from hi language of insurance contract here well two things number one the specific length of the terms contract certainly we look at what the court's job in terms of in terms of disputes between insurance carriers on an equitable contribution matters to do equity in the justice yes we look at what the california supreme court told us that we were supposed to look at insurance contracts and apply general contract law principles we do look at general contract law principles and we do look at policies if you do look at these policies if you if you're looking at the complementary policies here your honor you've got a policy that covers transportation risk and excludes operation rescue also exclude based on the weight of the concrete that was in the plant when it was when the boom was extended past its tipping point has a center of gravity that caused that caused the foot or the outrigger foot to slip off of its cribbing off of a square pad and knifing into the soil had said it didn't answer that question your honor that there was one hundred percent certainty not just the likelihood that the loss would not have occurred if the boom was not extended to far away from the to be achieved is actually lexington's causation result they have to prove conclusively that the that the exclusion applies since it's an explosion it's going to be drawn narrowly interpreted narrowly against lexington but then you didn't put any evidence that it asked to cough nation it you're just saying it's the report that the report are is you are you saying the report doesn't meet their burden or right i believe the report doesn't meet their burden for summary judgment standards summary judgement standards you need you know it miscible especially in this case expert type evidence that there's a soil subsidence that now it's undisputed that it hadn't been turned on yet right i'm sorry that that at the pump hadn't been turned on right not necessarily true of the pump at the time of the loss the pump was not operating however so that's undisputed that is undisputed in the district court correctly quickly found that the that the movement of the boom in order to extend the whole unit acts together as a pump pumps the concrete through the two that puts it to far flung flung places either higher or far flung so without the boom there's really no reason for the pump whatsoever so they they work in concert and i think the court this report got that right is that it was predatory it was rising out of the use of the pump said to get where you want to go do you have to kind of show an intersection between the two policy that one that that there's a coverage there's some cross section if you were drawing venn diagrams that there would be an intersection of coverage you know there's not an intersection of coverage there's a complimentary i guess the coverage is complementary you got there was a policy that excludes coverage for operations well but you can have situations where both policies are primary as to particular loss and we don't exactly have that here i would say we do not have that here we have  nature if there's an ambiguity i guess there would be a cross section that but that we have that here i don't believe we have an ambiguity in the policies with respect to the mobile equipment vs the transportation vs the construction risk there's an ambiguity in the policy it's with lexington subsidence exclusion whether or not it covers the cycle last but with respect to what the ambiguity heard me what how do you see  that can you say yes or no on that to his answer whether his question in this case there is the caving in the compression that i guess if you will of the soil was caused by something else and does not apply to sorrel which is compressed by an outside force that is my position your honor well thank you ok so you're at three minutes and i just to give you an alert thank you  where something struck the soil and that then that soil subside you've got to look to see what the facts are in this case your let you got a source of science exclusion that talks about heating in or slipping not necessarily something that's acting upon the soil in terms of the cause and effect i can think of a compression argument for judge bay is that if a meteor comes down in hits in the desert and after you take the meteor out you've got a big giant home ground you're not going to say that you have soil subsidence there you've got a compressing the thank you very much james we're going to have lexington i would like to point out that there are three independent grounds on which the judgment can be affirmed any one of which is sufficient in logical order they go the other exclusion the subsidence inclusion and the other insurance clauses the other insurance cost issue i would submit is the simplest way to affirm the judgement because these two other whatsoever in the earth movement the wyatt case which is cited for the first time in there in the appellate reply brief is a case from minnesota that basically says the earthmoving exclusion only applies when it's a earthquake or massive type of would your argument be different now so that isn't that doesn't matter in your argument no the reason why that's getting back the other solution by the way but the reason why it wouldn't matter is because the use of the pump on or off wasn't a cause of the accident you have to look when you asking ourselves the question what is meant by the phrase arising out of there's a notion of long posed damages that's what a liability policy is for as long hose damages and what is that liability situation where the exclusion is limited to just natural forces the exclusion applies to any kind of earth movement whatsoever quote unquote and that includes manmade causes are met cause it contributed to by the negative people recall this is a liability policy as a liability policy is focused on the conduct of third persons for so long poses liability and the law can only impose liability when there's some fault of their own typically or in the case of strict liability which is not what we have here your subsidence as i'm reading the exclusion means earth movement of any kind whatsoever you're right there and then it has a series of examples none of which is seems to moving from some natural cause and you're on i think if that is needs to be interpreted in the context of existing case law can be an end is the particular language that we're looking at here and let me just offer  in response to her on this question well i mean judge i'm sort of building on judge judge based saying he's looking at it and he's saying that seems to be just without it seems to be instances where nothing's been done to the soil prior to the subsidence but and if you had something in there that said subsidence exclusion applies regardless of the cause of the movement that would include someone doing something to that so yeah let me remind the that the city of carlsbad case makes it clear that exclusion the not be perfectly drafted need only be considered just plain clear we can't insist that insurance companies hire linguists from harvard to draft all these things perfectly the question is as as her was just to insurance companies you skip the rules of no construction that kind of stuff you look to what the intent is the intent here when you look at how if it were that the deceased family and the injured parties that were arguing for coverage would they have a better chance to prevail against someone here than you two against each other they would have other rules from which they could argue and i would agree with that those rules don't apply here as in this case they've all been paid off correct correct and it didn't reach we have the auto exclusion then you have the exception to the exclusion for operation and i know you say that's not applicable but let's say it was applicable then we're getting to the the excess insurance and i think the argument that was makes is that that says there were two non conflicting other insurance clauses are should be ignored non conflicting is the key these other inshalla if my argument if the van diagrams if there's a if there's an intersection then were looking must have less force you have to have you got yes you have to have two separate so you'd have to have a different risks or the same risk of going to two different policies which is possible for two different risks would be said to conquer and cause one cause under from the election policy by by virtue of the definition of mobile equipment and the exception is covered in the cost of policy and vice versa so you're saying the operation to your exclusion or exclusion  yes because because take the food truck case in the food truck case that he's referring to there was grease on the stove in the food truck while the food truck was going down the road so that grease was a part of the mobile equipment there was a food truck and so there you because you're parking it just like parking a vehicle without the handbrake on it rolls down runs over here that is a negligent parking if you park the vehicle in such to any one of the cases we say where they left the children in it one of the children got in a car and moved the shift lever and then rolled backwards on another child that's negligent parking that's covered under the type policy but getting back to the other insurance pause which i again and i think this argument demonstrates the point i made at the outset that it is a very spirited argument i appreciate the effort the court has put in a review to be on the record the simplest way to affirm the judgement is to look at the other insurance clauses because they are non conflicting and non conflicting other insurance clauses is not a single apply and that that narrowly drawn in excess only language has never been held by any court in california to amount to being in conflict with another clause and out of policy such as the which says i'm primary and so i would urge the court to consider carefully that not a single california case is ever said to not conflict and other insurance clauses should be ignored and the last that would be a precedent that the california courts may do with other insurance causes and long time ago thought i was going to write a book on this and that's the first chapter i started out and i read hundreds of cases not a single one  i have one quick question for you if the let's this is hypothetical but if the panel were to find that summary judgment should not have been granted to your client do we need to remain on the case back to the district court or could we enter a judgment for  you'd have to remain there for further proceedings there was no discovery done we want to do additional discovery and many other questions of law size raise francis's judicial notice requests the said well we want to go back and look at the i think the soil sudden an awful lot of issues have been thrown in here that are sort of factual issues that need to be explored further but it's not a case that this is that summary judgment should have ever been granted to wausau and there may even be an issue of fact here because if we're going to try to if we're going to retry the issue that was tried to state court and ask oursel what was the cause of this accident of judge phillips is correct that she does not bound by that one part of the judge miers decision the state court then find that who is going to try that case because judge phillips certainly can try that case and some rebuttal she has to try that case after thank you in my couple minutes i'd like to address a couple issues very quickly there was some discussion about the complementary nature of these two policies and what the what the lexington policy in the water policy does is cover different and separate risks and looking at the language of the court was looking at lexington's policy excludes losses arising out of the use of the auto except there's an auto there's a there's an operations exclusion exception that exclusion which operations exception to the exclusion which gives back coverage for losses arising out of the use of what's called mobile equipment and mobile equipment is defined as as the pump philips craft auto aircraft autos watercraft not subject to exclusion gee their policy exclusion gee have their policy is the auto exclusion with the operations but this is very narrow it's very narrow it only covers where they have an auto exclusion they have an exception to the exclusion and with respect to that exception they're looking they're saying their excess what's wrong with that because because that they're now saying that we are going to be excess insurance to the risks that we've already determined we're going to cover they may cover isn't all x other insurance causes are i mean it would have to be something that you read to cover or you wouldn't say of the same type of insurance covering the same type of risk and if one's already in there the other is going to be excess but you don't have that here you have two different policies one that covers the transportation risk one that specifically lexington covers the operations risk and then it has another insurance closet says sorry we're taking that back we mean to cover your operations but we really were not and so any time there's a loss covering your operations that arise out of an auto which we