both sides recognize that there is an inherent conflict in the district court's judgment because the district court found that there was a duty to defend  finding because as the panel is aware under california insurance law there's a duty to defend whenever there's a potential for coverage meaning a potential  separate and this is it's it's it's a conflict in a practical way but in theory it's permissible i think under the facts of our case it is permissible because the way in which judges ha found a duty to defend your honor was because essentially she treated the comments by the claims adjuster mr vice himly in this claim and his supervisor in mcgillis has recognizing that there is a duty to defen recourse for the course would be to also recognize which judge huff didn't take the next step is if those adjusters who had involvement with the coverage issues recognized the duty to defend that's because they recognize that there was a potential for coverage they weren't going to get the answer to that question until there was a trial here at the state court level why is that why is that why didn't they get the answer when the ambulance driver w that was just one side of the story in the ambulance drivers story could have supported either mr in reeky is his version of the events that this was not a dart out accident that his actions may have in fact from what he witness contributed to the accident and as your honor is aware you can't be adjudicated issue of indemnity until the resolution of the trial decides how the accident occurred if the accident is ambulance driver must have been distracted he let the insurance company know that right away right there counsel forgive me for interrupting but that just sounds very speculative to me about what your client thinks the ambulance driver saw what's not speculative at all because in the record he's got his  he hires his own accident reconstruction expert because he's concerned that the rain might get rid of the evidence according to his accident reconstruction investigator that investigator believes that there must have been a distraction dollar policy so they had every incentive and after all they sued the ambulance company the insurance company i'm not aware of any authority your honor has the power to decide the facts only the fact finder can decide the facts the counsel asked you for your best shot and so i smoke bombs over there possibly it really feels like speculation i just want to give every opportunity to tell me what am i missing short well the burden isn't on the insured mr enrique's to show a potential for coverage when you're dealing with an exclusion the burden is on for months to say under no conceivable theory under the montrose decision can there be any act that could be potentially covered under the policy when an insured tells an insurance company this is what i witnessed and if you accept whether it's the judge or a jury decide how the accident happened if this is a pure dart out as apparently foremost believe that it although i should note in taking my best shot that foremost accident reconstruction expert mr easily crossed the road was heading back towards mr enrique's when the ambulance feared off which supports mr in re cases theory because of course he's going to point the finger because he wants to try to protect himself had his case not settled so i don't see how the insurance company can say by no reasonable fight no conceivable theory could there be any act which could be potentially covered under the policy and that really can only be determined upon also wanted to briefly discuss blue ridge and that would be the other way that the court can essentially reconcile the disparity and the judge's ruling on the california supreme court and blue ridge gave insurance companies a very simple way to preserve a claim for reimbursement of settlement payments not only is it easy and simple for insurers to follow it's easy for their insurance to understand and it's easy for trial courts to enforce strict compliance as we advocate a court should follow brew blue ridge under of voids confusion it gives party certainty and it discourages strictly enforce it under the circumstances in this court elected not to follow all states lead but to strictly enforce blueridge and i think appropriately noting that the court job was to ascertain and apply california law if blue ridge needs tinkering which i don't believe it does i even suspect most insurance companies don't want it to be tinkered because it's so easy to follow to preserve their reimbursement claim that that really needs to come from the california supreme court now i know counsel is going to talk about how well mr in re cases receiving a windfall where he's being unjustly enriched because that's not what he bought under the the policy well of course that assumes that there's no coverage under state farm person partridge which we believe there is or at least the potential after a fact finder determines how the accident occurred but i  would spin it this way there's two sides of the unjust enrichment point for most had an obligation to give its insured and insured including mr in ri case the choice when there was a proposed settlement offer it was intending to except it didn't do that and that's critical for the insured to be able to decide what am i going to do under the circumstances neither choice is necessarily good but they need to have the choice you either accept the settlement and defend the coverage action or you refuse a settlement and defend yourself in this case they never gave mr enrique's that opportunity so if anybody is being unduly were unjustly enriched it would be foremost if they're entitled not to follow the blueridge but still receive reimbursement now i know that understandably foremost is going to argue well under the facts of  be relaxing and beyond the fact that this really isn't the province of this court to do that but the california supreme court this isn't the case in any event to relax you know in progress of west where the district court in san diego relaxed the requirements somewhat it least it was clear that the insured from day one through their counsel wanted that case to be settled because they knew absolutely it was going to lead to an excess exposure but given advance notice he would've refused a settlement and defended himself because he felt very strongly he didn't have lied delivery for the accident finally on blue ridge i just wanted  briefly comment that they keep foremost keeps arguing that mr in ri case demanded that kate settle for the policy limits there's nothing in the record that supports that what happened is during a policy limits demand of one hundred ninety nine thousand dollars for most as baron mr enrique's what do you want to do with this well understandably because one month earlier for most it said we don't know really where the value of this case is quite yet we're not in a position to accept the policy limits demand mr enrique's askew ms counsel mr ryan understandably said we want you to drop the coverage action and resolve the case no number  declaration said that there were smoke bombs and fireworks being set off there was evidence that the driver had been working basically all weekend and was potentially very tired which has nothing to do with being on a motorcycle and one of the boys told the police that the ambulance suddenly veered off and didn't try to stop which was similar to  observations that he had made why isn't that constellation of information anough to allow a jury to conclude that the driver veered off for reasons that  e nothing at all to do with the motorcycle your honor i think the courts and the courts going down the wrong track here the details of the accident are a distraction because that as the district court found twice there was no potential for coverage here regardless of why the ambulance veered off the road regardless of whether the ten year old boy crossed the road or whether he was driving thirty feet or twenty feet from the road that's not relevant because the policy excludes coverage for bodily injury a rising a from a motor vehicle i had as a partridge case we know that counsel but why isn't it a par cause that's what judge labor is asking you to address thank you your honor it's not apart from each case because the alleged antecedent negligence in this case by mr enrquez failure to supervise parking the truck to close to that road by his own theory that negligence contributed to the auto accident when you have a so called concurrent cause that is not separate that is not independent that is not that is possible that he viewed it off because he was sleep deprived for reasons that had nothing to do with the fact that the child was on the motorized vehicle that falls within the exclusion well your honor and the allegation we have to focus on the allegation against mr and wreak is the allegation on which mr enrquez claims coverage is that his negligence contributed to this injury the theory mystery his theory is  i was negligent in supervising the boys i was negligent in parking the truck too close to the road i distracted the ambulance driver that's his theory of why there's coverage here the district court correctly rejected that theory twice the court he said we have don't we have an obligation to look at it in a broader sense because as i understand california law we have to look at whether it's possible that evidence will be a deuced under the complaint that would create coverage and if you if the car as if a cause of the accident was a tired ambulance driver who fell asleep and suddenly veered off the road it doesn't matter that the victim was on a motorcycle on foot lying in a sleeping bag or writing a donkey because that it wouldn't be arising out of that it would be a rising out of something else you're not why isn't that a permissible way to look at this case your honor regardless of why the ambulance driver veered off the road the fact remains this bodily injury arose from the use of the motorcycle rebar i've got how it's how it's how it's not possible what if what if the what if the boy was standing astride the motorcycle and it wasn't moving that that would still be a rise out of a out of the use of a motorcycle because they were just out of the desert riding bikes your honor if he had been riding a bicycle if he had been walking if the accident occurred in some other way what if he had just parked the motorcycle a standing but was leaning on it and when he got hit would that still arise out of the use of a motorcycle we'd have a out of the use of a motorcycle or not if the motorcycle was not operating and the end of the spear off the road then i don't think it would be said to arise out of the use image of a motor vehicle but that's the allegation against miss very rica's in this case was you negligently supervised me and as a result i operated the motorcycle in a way that led to my bodily injuries that's precisely what the policy was designed to exclude the policy excluded mightily injury liability arising out of a category of injury a category of of activity use of the vehicle now the reason why he was using it doesn't really matter the policy doesn't take that into account the reason why the accident occurred doesn't really matter the district court was correct this is not a partridge case but in partridge the injury was a gunshot because mr enrquez would not be liable had done anything wrong right now then all of the liability would be on the ambulance driver right that's that may be correct there's a theory here under under which under which the under which the plaintiff was trying to go after two people simultaneously both an ambulance driver and mr enrquez he's trying to tap two different policies he's got to be able to find liability on both sides if it's exclusively the fault of the ambulance driver mr and rica's is not is not liable and neither is your neither is your insurance company right that would be correct your honor but the issue here is not liability the issue is coverage sure that's right but i'm still trying to but i can we can work backwards if you're going to be liable then you surely are going to are going to defend  well only if there's a potential for coverage for that there are better standards on now mr reavis might be liable he might not be liable but but but if he is liable it's because of an auto accident it's because the child used the motorcycle if pointed the lasers at the at the driver now i can't is there a possibility that mr enriquez is liable for something other than that doesn't arise out of the use of a motorcycle even if the evans child is on a motorcycle at the time let me ask me clarify this if you're asking if the boy was reading the motorcycle but i'm going to the other two boys are using lasers they're off they're off but they're done they're done writing they're they're tired they're done they're done writing and they're over playing with these lasers and shining them all around and to the motorcycle accident that may be true that's not a partridge case that's a case in which his liability arises out of that is is connected to is related to is incidental to the use of the motorcycle in this case now we can hypothesize other cases where that child may have been injured without using the motorcycle that would be a different analysis because the policy talks about injuries arising out of the use of a vehicle or the entrustment of a vehicle or the negligent supervision of a person on a vehicle so in our case as the district court twice ruled the policy creates no potential for coverage here it's like the court's own opinion in continental versus richmond if the court will recall in that case the policy excluded coverage for loss arising out of the death of a person but right it was a category of loss that was excluded the plaintiffs to see died in police custody they sued the city the city such coverage the court correct different theories yes the court said everything his life had the city's liability if any arises from the death of a person that's an excluded category of loss no potential for coverage we have the same case mr enrquez liability if any perhaps he is not liable if he is liable if it arises out of the use of the vehicle in this case under these facts in the case of farmers versus superior court of california case you cite in that case a grandmother negligently allowed a two year old child to leave the house the child was in struck by the grandfather's truck as he pulled in the driveway the policy excluded loss arising out of the use of a vehicle the the insurance argued well the grandmother her negligence wasn't related to a vehicle she took her eyes off the child the child not one of them i i just think you're not answering the question your honor just why isn't there a concurrent cause here because we have different you have a completely different factual scenario with that what i call the distraction theory the fireworks of smoke bombs and what not and so to judge right but the but why doesn't the theory work that that the that the cause of the action a concurrent cause was the destruction from the fireworks in the smoke bombs because the concurrent cause gun could have gone off the one with the hair trigger could have gone off whether that whether they were in a car or not and what we're asking you here is to entertain the possibility and maybe we should just stop but about whether this child could have been hit by this ambulance whether he had been riding the motor motorcycle or not yes he certainly could have been hit in it had he been walking by the side of the dancers and if that had happened that it still would be in excluded event no because that would not arise out of the use of vehicle just because because  he in that case he he wouldn't get on the bike under this hypothetical yes and he would not have operating the vehicle and it would not arise out of mr niggas is entrusting the vehicle to the boy and it would not have arisen out of mr and right off the bike with the boat your honor i don't think a bicycle would fall within the definition of a recreational of you know i know that i was riding the motorcycle riding a motorcycle through the desert with the other boys and somebody out there hunting hunting rabbits and just misses  shot badly and unfortunately that's not what i think that's partridge or on that's partridge there you have even though it is still arises out and his and his in his his injuries may have been aggravated by the fact that it was on a motorcycle  well if it didn't arise in partridge the in the cars that inflicted the injury was the gunshot and in your hypothetical the cause that inflicts the injury is the gunshot that's not an accident is not a partridge concurrent cause if it's a gunshot wound coming out of the forest that's different your honor i do want to address just about you're just out of time but we'll give you a minute for partridge but we've got to instrumentalities that have nothing to do with the motorbike itself we've got the smoke bombs and the fireworks and we've got the ambulance everybody's kind of forgotten about the ambulance  that i mean both council the ambulance is not an excluded event the potential is we somehow distracted the ambulance which caused the accident but you still have to have a material effect you still have to have enough evidence that it that a reasonable juror could look at what's on your side of the scale and say yeah that could have been a concurrent cause and the ambulance driver says he paid no attention to the fire what the what the ambulance driver said your honor is that he was at the end of  seventy two hour shift yet he was the only driver because his partner parents had lost his ability or his license to drive temporarily while he did acknowledge they did get some sleep enormously would take turns with that driver he didn't have that opportunity and what he testified to is that he saw that the truck the trailer and the boys and mr enrica is who were within seventy eighty feet of the road even to the point where he recognized that one of the kids was wearing something that was pink in color that's before he saw the motorcycle rider and i think they can argue by no conceivable theory announced i would urge the court to take a look a careful look at the progress of west case from the district court which was a case very similar to ours in which the insured said i want you to settle this case for policy limits and i want you to relinquish your claim to reimbursement that's exactly what we had here and the district court said no no you all agreed this case should be settled for policy  limits there was no dispute under those circumstances blue ridge requirements are relaxed there's no there's no need to go through these for morality when everyone agrees the case should be settled for policy limits here of course they settled  for less than policy limits two hundred twenty five thousand dollars less at the time mr meek is just counsel demanded that the case be settled there was a policy limits offer of a settlement on the case well below policy limits mr ryan the humus counsel said we demand you give up your right to reimbursement and under progressive west and under blue ridge that is not permissible  honor they found that after the fact but under progressive west when everyone knew the case had to be settled for policy limits or less then that requirement should be relaxed it was relax