he's got me buffalo then i don't know as you were near the base but in this case despite its history there's only been one appellate justice who has spoken to the central issue in this case cases in which is risky yes in the casino west case out of nevada there was a case and i believe that to be persuasive authority that your puppet will familiar reached waste of authority in a case that is in my career never been more on point in that casino west case it was the century exclusion of the end or air and the indoor air exclusion by century is an exclusion they have developed they use in their policies they only use in their policies that's why there's in my opinion only one other case but in the sense in the casino west case that was a hotel case just like the silent springs hotel in the casino west case that was a case in which the hul feeder malfunction the same asean asylum springs case in the casino west case the pool heater malfunction and it emitting carbon monoxide which gas brave b n same asylum springs and the casino west the guest were injured by breathing in the carbon monoxide just as they were here they sentry in the casino west case of a rock not only on the end where exclusion but the exact same haarp of the exclusion were talks about qualities and characteristics of indoor air just like they have here and in that case a federal district judge family on them the interpretation by century and the interpretation that quality and characteristics of indoor air would not apply to a sudden and accidental carbon monoxide release thus it was ambiguous thus it was held against me and the  was federal district court then when it went to the ninth circuit the ninth circuit certified the question to the nevada supreme court and they unanimously hailed that the indoor air c contamination or whatever the term is it one point uses an adjective in other places uses and now what is your best argument here as to your position but how should we interpret that and therefore rule in your favor our position is when they say qualities or characteristics of indoor air and the reason i picked that is that's what they relied on when we have the sudden and actually the release of the carbon monoxide into the air that is not the quality and characteristic of the year the quality and characteristic of the ear is what is in the air usually normally they talk about mold in their exclusion they're trying to get in there which if you had a moldy building would be something that would be a quality characteristic of the air  right not only is it typically but we know that to be a fact in this case because unusually since it was a century exclusion we took the deposition of ernie taylor who was one of the gentleman who was part of developing this particular exclusion and when it started off it was call a mold exclusion and while mr tabor did a fine job as an executive in this company he did it signed into in the record not brief never did they discuss carbon monoxide to his memory or in writing while they were developing this particular exclusion might my problem is that you seem to want to ignore what i think are some pretty important words in the policy which is the word any is used twice alleging to be contributed to in any way by any any toxic hazardous noxious irritating path pathogenic or allergen qualities or characteristics of indoor air regardless and also this word these three words regardless of cause twice they say any they also say regardless of cause those are all encompassing words and what you seem to want to do is put a temporal limit in there that's not there which is well it may be a characteristic but it's a very temporary one because it's su and i don't see that not only do i not see a temporal limitation i don't i think those words that they use the words any any way by any toxic characteristic regardless of cause seems defined by purpose to rule out arguments like this well my position is just that with another federal district judges and the nevada i understand that but i'm saying i'm not sure i'd i don't think that court focused on these all encompassing words that were used here i think they did because they said that centuries position was not unreasonable they think they dollars the centuries position that's what that court thought i'm asking you to address these words well i think and i think i think i stand about those maritime a limitation that you're placing that's not there i think those words are what make centri position reasonable but i reserve the reason i think our focus on qualities and characteristics of a are is just that it if it's something that is generally not there and that's th casino west case then that's also a reasonable explanation even though the c o two didn't exist the day before and presumably after the heater was fixed did exist they after it only it only happened for a short period of time what about it  what about this says anything about the qualities or characteristics and how long they must take and or how long will present i believe qualities and characteristics in their playing every day ordinary meaning and definition using what i use what you use what webster says it is talks about they have qualities and characteristics limits it down to inherent things that are in the air and obviously the c o two in this particular case wasn't are that's why the position of it being not covered under care all these in characteristics is reasonable and we've got two reasonable ones that lead you to the ambiguity so  position in this case they have only focused on the one portion of the indoor air exclusion which has the language about qualities and characteristics that indoor air like to turn into your motion to reopen the case now i recognize those cases have this kind of strange procedural history but she very specifically appealed from that the nile and that denial did not incorporate or reincorporate even though you requested the court do so your twenty fourteen grant of summary judgment which is what we're now talking about well the reason that it is no terminal decision that would create a jurisdiction problem is because when this court handle it last time despite what salient centuries bre they did not address in any way shape or theirs and there's no question about that that's not what i'm asking i don't think this court address merits we were very specific we remained in for a determination of diversity jurisdiction and then we added this superfluous comment about you might want to think about certifying the public policy question to the oklahoma supreme court that happens you know go home a supreme court decides a few months go by and you then file a motion to reopen and in that motion i think you did the right thing you asked the court to either reaffirm its original two thousand and fourteen summary judgment decision so you could appeal that since we've never decided it or i think you asked it to reconsider well the court didn't do either one it it just denied the motion and then it didn't enter any judgment so the argument as i see it is then you appealed from the denial of the few refusal to reopen but you didn't argue that you argued twenty fourteen summary judgment in the ambiguity issue in the order  judge did reopen because she was adopting her previous ruling and within thirty days of that we've brought this case back to your doorstep so i understand that so i think your argument is that it sent essentially merged because there was the problem you have is there was a final judgment back then and that was properly appealed we didn't rule on the merits but it was properly appealed so your argument i think now is that somehow that final judgment merged into well into this denial what was a clear denial of a motion to reopen that's the only thing that got  specifically reaffirmed there was simply a denial of reopening the authority that stands for you have a right to appellate review and there hasn't been any and we have a string site in our library exclusion is ambiguous not because the language is awkward or because it's not grammatically correct but because it suggests the possibility that the exclusion could apply to a latent condition such as a mall or the possibility that it could apply to a sudden release of some noxious or hazardous chemical such as carbon monoxide that was what has been argued in the  argued on this appeal the fact is that that does not create an ambiguity under a common law because it can be both and isn't that both under the terms of the exclusion let me ask you this but let's say that there is a  be a room that got smoke inhalation and the occupants died you discriminate in terms of coverage as between people who were directly  that if in fact that was the agreement of the parties that they are free to contract as they wish so long as it does not offend public policy and there can be a reason to discriminate certainly sounds like that offends public policy if you're going to say that sixty percent of the people who died get relief but the thirty percent don't because the air quality in the room was affected but there is no public policy in the state of oklahoma requiring insurance coverage for hotel or motel it is not like compulsory auto insurance which doesn't the public policy is under our law and there may be a reason to discriminate for instance if a person dies from burns it's obviously you can see they died from a burn if a person claims i have had an injury from smoke inhalation that was not physically physically obvious there could be reasons but the point is it is not the court's position to second guess the wisdom of the parties contra or i will just not talk about the wisdom of the contract but just talk about the mold i think it likely would but there is within this exclusion within the policy a separate subsection a deal specifically with mold and a bacteria it will is is carbon monoxide a characteristic of air component of the air and i would suggest your honor that it's important to bear in mind that while he like i discriminate i distinguish i guess between air and a toxic  air or hazardous air or noxious air and the quality of there which is can mean something entirely different well i don't know that a lay person which is the standard that is applied here and understanding what this means would draw the line that if there is carbon monoxide in the air and that renders it hazardous regardless of cause that that does constitute a hazardous characteristic well it will two courts have looked at it they said well this is ambiguous but the casino west chords looking at it said that it was ambiguous not because the language was unclear but because it could apply either to a latent or to a sudden condition yet the fact is it can apply to both that doesn't render it ambiguous furthermore didn't buy that argument right i mean they said it was it did say it was ambiguous i don't think it was discussed particularly whether the application to both circumstances was presented to it but there are other problems with it as you know west case to show that it is not consistent with oklahoma law first and foremost that the casino west the nevada supreme court in deciding casino west said that the policy was ambiguous if it creates multiple reasonable expectations of coverage so did you all discussed below certifying this question of the oklahoma supreme court and your honor we did not in terms of the originally before the judge miles of range made her decision no because this this case presents a question of well established oklahoma law not specifically as did this mean you script indorsement but as the b p america case make clear the standards for interpret ing insurance contracts under oklahoma are well established the rules from the dodson case forward have been very clear on how that is to be determined and and while this case may present a unique application what is it about those ordinarily carbon dioxide would not be in the air but that does not mean it cannot be a characteristic of the air at the point that it's released into i'm not sure i'm understanding i guess your argument is that you think that if it's that's what i understood he was saying it is not ambiguous because you can apply to both that it can apply and i think the argument is they're making is it's ambiguous because it may be you know it may be interpreted to not apply at all to it to a temporary sudden situation and that's because of the words qualities and characteristics which are hard to figure out how they're used here but i think there is a way to look at this to say it's ambiguous because those words qualities or characteristics exclude this sudden event that and so if that's the case if you can look at it to be to be ambiguous because it's not clear whether it excludes this circumstance then doesn't that kind of blows your argument that there's two reasonable ways to interpret the coverage here and that is not a distinction i've created that was a distinction the casino west created the nevada spring court and the nevada supreme court found that both of those interpretations were reasonable both that it was latent and that it was and that makes the point that the fact that it could be either does not render it ambiguous and certainly notwithstanding the reasonable expectations of the average policyholder so we do exactly the opposite no i understand that but it seems to me that this begs the question of whether the this language is ambiguous in that case merely holds that if there is an ambiguous language you assert that truckers everything can you win but if the language is ambiguous then you don't necessarily win and so the question here is is this language big us or an ambiguous i don't see what quite how gods it informs us in any way on that point well i would let me make two answers if i may that it is that it were it can lead to refer to reasonable conclusions does not render it ambiguous for instance the policy or this exclusion could apply to bodily injury or it could apply to property damage that it can apply to both does not render it ambiguous secondly neither dodson nor other oklahoma cases give guidance on what constitutes an ambiguous ambiguity within the language other than when it's read by a person who are near intelligence giving the plain meaning to the words that it leads to two inconsistent conclusions and what we have here is a circumstance where the two conclusions that have been argued ar inconsistent so if we have two people of ordinary intelligence and ordinary and one says it means this and the other says it means that you're saying it's not that's not ambiguous because it could be both certain but here you have a pollution exclusion that was present in the bitumen as versus cohen construction case but the opposite language was identical in both cases the nevada spring court concluded that that indoor that exclusion was ambiguous and would only appl environmental pollution whereas the oklahoma supreme court looking at the sign language so there's nothing in this language which would limit its application to environmental pollution there ford applies to all pollution and i think that likewise illustrates that obama would reach a decision looking at the language of the policy not looking at what an insured or even reasonable juror might expect in terms of trying to figure out what that interpretation would be the language of this exclusion applies to this case i don't think that anybody could reasonably argue that carbon dioxide is not a hazardous condition or quality or character somebody might argue that if an insurance company wishes to exclude every coverage case i have and i've got about twenty in my office right now where they're saying you could have said something different that's always the argument that the policyholder goes you know no clue they put up i'm just saying they could if they wish to do that they could qualities or characteristics of indoor air regardless of cause and i'm supposed to know is a kind of a lay person that that means mold it and carbon monoxide i think  so and frankly we can't list everything we're not required list everything we're required to inform the insured in some reasonable language what it is that we're excluding what we're covering but to to list every potential characteristic hazardous characteristic every chemical every allergen every pathogen that might affect indoor air would be literally impossible it would make the policy impossible to understand the problem is using the term quality of error to make that universe well that's what the argument is before us that it is although i think characteristic of it i mean i could say that the the air quality when i walk to the courthouse this morning was good it wasn't smoggy i could say that the air this morning had a cool quality or cool characteristic i would characterize the air as cool that wouldn't confuse it an ordinary person is what i meant it wouldn't judge murphy last time but there has been a motion made here obviously the court has the right to do it oklahoma supreme court has the right to accept it or or or reject it the reason i don't know that it's necessarily important and i certainly don't recommend it argument and enjoyable i might add i think that that is our third case this morning we will take our customer break for ten minutes