jurisdictional question my remarks on that to the end of my remarks this morning that's an issue that i feel very much is the court's prerogative that something the court knows better than any attorney what  i'm here to offer the court my views on why you are and why insurance coverage law in particular which is an area where i have practiced for many years and i think i can offer the court more guidance there than i can on the difficult restriction  question the question substantive question presented by the case is whether or not an injury that occurs to a police officer who is acting to prevent an unlawful use and to unlawful use of a car does that arise out of the use of the vehicle as that phrase is used in insurance policy the district court's problem i think with this case is the result of where you have it are it's easy in the cases where people are still in vehicles where vehicles are still moving for someone to say well the vehicle somehow contributed actually as a moving platform or it enabled somebody to get closer to the target but once people exit the vehicle then if you say that the causal sequence is still continuing to still be occurring at the moment of injury and we cite a number of cases on that point so that it's arising out of the use so if there's a used and that i mean one example is where the person parks their car and then that there it's a very simple example and it blocks the road and someone at night it's unlit and someone at night runs into it now or somebody stopped using their car when they parked it but the injury occurs after their particular uses and the other cases for example where they where the good samaritan approaches the vehicle after the accident to render aid another one was where a person decide all these cases in the grease and i apologize for not remembering the names of each one but another another one was where a person came to the aid of an accident victim and have to hold them in an awkward position when alan suffered a backing all of these are happening after the use of the car but the point is that the events that happen immediately after the use starts are directly connected in a very natural and probable and foreseeable way from the use and that's where i think we can give the district court some comfort that you can draw some lines that will not open this up to just an infinity of corning's the the point here is that officer haskell if we think about our society we've set up a very complicated system around automobiles in there are lots of different parts to it and one of them is the insurance part and that's there to spread the risk of this very large to turn one turn objects moving at thirty and forty miles an hour around our streets we actually have a whole system of criminal law that is uniquely for automobiles i think as we pointed out of the district court there is no lawn mower theft patrol in the heart of the police department but there is a motor vehicle theft patrol specifically designated go out and look for people who are unlawfully using or stealing or stealing from automobiles there are crimes involving the use of automobiles that are specific to automobile unlawful use of cars if you see them you are duty bound by law are you as a police officer have an absolutely goal duty to enforce these laws and stop people and detain them and arrest them if you see a violation so he case i think that is one the factors that a jury would have been able to put into the equation to decide whether this causal link was broken by an independent act an act of independent significance and that's that's really where the case comes down what i'm trying to show judge nelson in response to judge nelson's question is that you have this causal chain that starts with the use the person is unlawfully using the car the officer is on patrol for those kinds of uses he when he sees one he has to do something about it he has to take that person out of the car protect that vehicle detain the person and arrest them there's no choice there's no independent decision that he can make said well you know for looking for a guy he's told look for hey i was in a car finds the car that i just i know there are well there are cases that have said where that where the officer just find somebody who happens to be in a car and he's just arresting a suspect who could have been on the sidewalk could have been in a car and he's suspected of something else or some ancient crime that that doesn't arise that that's a mere situs case and what i'm suggesting to the court is that saying it is a question for the jury well i don't i actually don't think there is i think that we should have won some of those and i moved for summary judgment as well but at the very minimum i think the judge cannot say what she said which is that there is absolutely no so from your standpoint what happened here and then try to tie that into your notion of use under the policy this is an area of the island that is relatively remote there are no buildings there you can only reach it by car the tourists like to go there because it's very scenic they park their cars and leave them and it's next to a community that's a low income community and relatively high crime so there is a high level of car theft particular detail at the heart of the police department  to guard this area and to watch these cars and to make sure that no one loses their valuables or lose their car after hassles jobs to go into that area look for this kind of activity he saw our moses actually with himself decided voluntarily it's not clear which to come over and try to explain that this is my car or my family's car but officer haskell wasn't buying that he saw moses was larger than he was he called for his back up and they're very close by i mean literally about four or five hundred yards away so it could take a minute maybe for the backup to get there to judge the district court judge felt it was around three minutes total between the initial sighting moses did not want to submit to rest and did not really want to remain there he started pacing and moving and in the struggle to subdue him to get him hang tough a gun came loose from one of the officers felt and this charge and there's a great question in fact one of the things that the trial judge said lower court said is that this was an intentional shooting and that's one of the factors i'm going to find as cutting off the causal link from the initial use of the car and that's a question of fact in fact one of the additional submissions that we made last week is to let you know that the appellate court has reversed allows this conviction and he's getting a new trial on this very question of whether he acted intentionally or not so even the use and summary judgment that is one of the things that we believe to be the case correct but we would submit even with intentional shootings cases it clear that that you still break the chain of causation with an intentional shooting necessarily you have to look at that as there are other other factors but we think that this is not a case where he's simply arresting someone who was already a fugitive who happens to be in a car point is he is charged with stopping that use this is very much like a carjacking victim for example who comes out of his driveway and see somebody trying to steal his car and wrestles with him and tries to prevent him and grabs him and you know i think the district court would have to agree that if if the person was holding on to the car and got dragged a few feet and injured that way that would arise out of the use of the car if the if he  him or her down on the ground and then jumped in and drove off where do you draw the line that isn't that's a place for the jury to decide if there is an independent and active independent significance outside the transportation use of the the ambulance driver there at this court certify the question was the ambulance driver using a vehicle because that's the only way he was going to get insurance if he was he was outside the vehicle placing flares on the ground nearby at the scene of an accident and why supreme court that safeguarding a vehicle or protecting it is a use so in that sense officer haskell in this case by removing the thi and detaining him so that he can get back in the car and go off in it and can't get through its contents putting him on the side and handcuffing him he is also safeguarding the car and conceptually i don't see a real significant difference between placing the flares around the vehicle or removing the person who's attacking the vehicle the driver the ambulance was a little fuzzy facts that my recollection is that and mr miller knows these cases probably better than i do but the the flares were placed around the ambulance they may have also in compass the accident vehicle as well in this case also mr mozes was using a car because the use is defined as entering occupying alighting from a car or unloading it and he clearly entered it he opened the door he was into his head at least half his body was inside or he had a screwdriver out he was doing something in there with a screwdriver it entered it then he lit from it and he also was unloading it in the sense that he took a backpack out of it that was there's some question whether he was trying to steal the car or steal the contents of the car and the facts are unclear on that i have used up my first fifteen minutes so i would like to reserve the time that i have remaining for a bubble but just to say that the district court relied on three factors to say the chain of causation was cut off one was the time which the cases make clear there's no bright line there number two was the fact that haskell made an arrest we submit that was a natural natural and inevitable consequence of the use and number three was the fact that the shooting was intentional there's not only a question of fact about whether it's intentional but the state farm policy language makes clear that the shooting itself is the end of the chain so it can't cut the chain off the way the policy is written it says the accident good morning runners and it please the court i'm richard miller on behalf of stay firm addressing very quickly the issue that mr pinkerton raised about the reversal of mr moses conviction that's wholly irrelevant that we would concede in this case that from officer in causing the harm that's problem number one problem number two was the vehicle in this case the alamo vehicle was it being used for transportation purposes at the time of the shooting for the answer is no and by the way clearly the answer is no to prague number one as well probably number three and by the way all three prongs must be satisfied to find coverage problem number three is whether there were any independent acts of significance that would break the causal link looking at haskell's opening brief there are four pages of text devoted to an explanation of the facts that occurred between the time moses left the alamo about a car that occurs on page eight of the opening brief the shooting  confronting moses officer haskell calling for backup to fellow h p d officers arising arriving in their vehicle to the scene getting out mr haskell starting to walk away one of the other officers officer   shooting the weapon arrived on the scene long after moses actually hit the car and judge what ways analysis as to the amount of time that transpired between moses leaving the car and the shooting she didn't say two or three minutes qualify as an insured person under that vehicles coverage so that that person could claim un coverage in the event of a loss let me get the facts of goss as opposed to ensign scenario and by the way also the case with the ambulance driver in the flayers that's a dog's case the question also is not whether or not the loss arose out of the use of the uninsured vehicle the   from wahoo visiting the big island she was a passenger in a vehicle operated by a friend named shemp ship's jeep in which the group was riding since jeep did have un coverage in other words it provided coverage for all insured persons who were injured as a result of an uninsured motorist the jeep broke down and this brought her in got out of the jeep and began to walk for assistance twenty to twenty five minutes later a mile down the road she was struck and killed by an uninsured motorist both of those cases involve the exact same issue on whether or not one case was a shooting one was the stabbing and the question in those two cases whether it was whether or not those torts arose out of the use of motor vehicles those two in fernandez represented those courts and by the way the ninth circuit affirmed both of those decisions in favor of the insurers but those decisions represented the federal courts best guess as to what hawaii law would be both of those courts correctly predicted that hawaii would adopt the causal connection test in evaluating the scenario that test was adopted by the qur'an court in one thousand nine hundred three and then cage is important because cage purpose of provoking a confrontation doesn't mention a rant of the passenger side window that window the vehicle reached in the drive through grad driver cage cage fired a shot at him which missed because of manti ran around to the other presented here whether or not the shooting arrows out of the use of vehicles judge karen the federal district judge applied the qur'an test a three part test and said no there was no coverage even though there were two scuffles within the and so clearly that the operation the vehicle in that case was designed to provoke a confrontation with has a magic so far more favorable facts for coverage in that case than there are for officer haskell and then quickly the two other running it was an idle it was sitting at the farrington high school parking lot but the court found no coverage there under the karang the predecessor to the crank just the causal connection test even though the shooting occurred within a vehicle because the court concluded that the vehicle wasn't an active accessory in the last the vehicle was stopped it wasn't being used for transportation purposes at the time of the shooting and finally there were independent x division the causal connection between the shooting and the use of the vehicle they drive by one another flash their high beams exchange obscene gestures they both turn around pull over the side of the road at least one altercation and a stabbing there's a claim for uninsured motorist didn't hit and it benefits just as a re this case the federal judge in hawaii applied the causal connection test and found no coverage because at the time of the loss even though the interaction of the two vehicles directly led to the to the stabbing the court found that the vehicles weren't an active thank you i have spent many years listening to our district court tell us for example that there was no toward bad faith and never got an apology for the many clients who have their removed cases  basis for anything in this case the why supreme court has only addressed intentional shooting in a un case one time and that was in ghana iran and they found coverage there and ghana on is the test that we urge the court to apply as a floor the qur'an case was a liability case it did deal with the question of what the phrase arising out of the use of an autumn of the locomotive vehicle means in statute that is the phrase that is used in the liability insurance statute that phrase does not appear in the un statute the un statute uses the phrase injury resulting therefrom and it's unclear what that the the white supreme court might do if confronted with the arising out of the use of language but not really in when it's used in you know policy in a policy it's got to be construed against state farm that has been done time and time again one of the leading cases is when bill when that was the case that construed that language against state farm and we submit wendell would be followed there's absolutely no reason why wendell's construction of the identical state foreign language would not be followed by the why supreme court which has already shown in every single decision that it finds coverage or tries to find coverage where it can it is in the most liberal wing if you will of the insurance coverage case all its sides with oklahoma with colorado minnesota and so forth the idea that kurang let's just say we're going to take the statutory definition and use correction and say we're now going to explain why it could not have one of the factors in minnesota is that the car must be the use must be a transportation and that results from the fact that the minnesota statute requires that the minnesota statute says  operation of a motor vehicle as a motor vehicle so in minnesota they have to have a transportation used involved so why does it require that so the idea that we should just transplant and make some high crime area by taking a three