the bakken and it was designed to cover the trucking operations of that entity on the other hand you've got great west casualty which is you what's commonly referred to as an on trekking policy to mr han us who is an be the most accessible or the easiest place for him to go to it's important that the family says that it's conceded in the record that mr avery insisted you won't get another well let me ask you this what was it was this something that was dripping from this cracked i think that does not know that it's not and i say well the record would reflect is that the trailer why would why would water cause an explosion brief page nine avery was adamant that the pipe needed to be fixed as it presented the safety hazard site appendix one thirty five to one thirty six you're representing to me that when i read those pages which i haven't read i will find that this brief was incorrect you know what i'm saying is i think that that is a very talking about after the fact had he lived everything that he knew he would have said you have to get it fixed that's the context in which i understand  but i mean it strikes me that the reason highness brought it to avery was was he was he was cover and cover himself out of the contract here if you if you think i had to get this fixed you fix it so and we what's assume it was reasonable that he needed to get fixed you're dealing with something that's flammable does explode and let's assume that's not unreasonable that that that the disturbed judge miller was right that wasn't necessary what's your best argument assuming it's unnecessary here or is that your your is that you're pretty much your whole case oh says i was close to be a lower case a little closer but want to get bogged down on is whether that issue drives whether there's coverage of the national has a policy that issue policy if he is exclusively in the business of a brick no that's the trailer i'm starting with the tractor on purpose the tractors their right to try to was there yesterday yes and under national convention as i read it particularly when we clarified that this was a necessary repair for safety reasons that was within the business it's covered if the tractor blows up  plain wording is in the context of the recognition that tractors and trailers don't have to don't have to be doing the same thing at the same time and therefore and therefore if the tractor is more or less dedicated to the lessee but that but the trailer could be off doing something else and now we have the tractor and the trailer come together at the repair shop a tractor is there within the business within for coverage purposes within the last sees business and we have a fact dispute apparently about whether at the time of the explosion the trailer had been unhooked from this or there's a fact question present yes or and i say in the context of these clauses the mere on hooking for purposes of repair convenience or necessity does not mean not connected with their pacific coverage what's wrong with that position where you are the plates if not connected i think says what it says and if the trailer is not connected then there's a different analysis and for the trailer to just i'm starting with the exclusivity i'm starting with a brief start with the exclusivity issue which went on for pages and pages and pages in the competing briefs and to me this question of what is connected me is absolutely coverage this court has to specifically reject the premise of a better case the universe or underwriters case in the northwest versus murder case but those cases clearly stay in for under north the named insured would not be afforded ok so there's a very clear principle the fairness of the trial court sidestepped the famous elevator case by saying well there's no we have to presume there was no severability of interest provision there law states vary a lot i think it's pretty strong as best i can tell there has been no claim by miller against avery but to the extent you are out of there would be a claim by miller against avery what everybody in the room would agree with that is excluded whereas i mean many states are are happy to find third party magnified third party liability by judges and lawyers who don't like  please the court counsel my name is tamar nevada and i represent the appellee great west cash to company in this matter and when i like to focus my arguments is on the great west casualty company policy which is a non trucking or bob tail insurance policy there are obviously a number of issues raised in the subpoena but the issues or the analysis required with regard to great was policy is relatively simple most of the issues actually relate to national casualties policy including the various exclusions that it's relying on and for which it bears the burden with regard to great west policy the only issue really is the in the business of phrase since the great west non trucking policy would provide mr highness coverage only if the trailer was not being used in the business of kevin or every enterprise is at the time of the repair so why isn't why isn't  he's been copied with all of the briefs for whatever reason really represented he is not separate he is not he has been put on notice of the case throughout and he for whatever reason your position and what you're about to argue is he's uncovered the underlying well no i mean my for that is what my position is he is not entitle to correction of the great west policy however he would be entitled to coverage under the national casualty policy which is what judge miller held in the underlying  decision there is perhaps potential that he could be left without coverage depending on how you interpret national's exclusions but you know as in don't we don't we have to be concerned if that's the case if he's if you're if you're only or if you're representing if your client's representation of it's insured is to say the other insures is provide has to provide coverage and oh by the way if that's wrong we don't either now we have a problem  secondary right now i would agree if you go you know highness is covered one way or the other but not both in the positions taken by the two ensures this morning i hear saying is neither liable we are and that is our position that's always been our position i wonder brought the the stick led to a judgment action that was what we requested was a determine so this argument you were about to make is just to avoid the primary secondary you know deal with the loser west they have national casually dust cover you would concede great was does under the bob now i mean i think generally great but there is either covered under one or the other and i believe that is true in this case that there is coverage under the business that the trucking policy issued by national casually just as judge miller found me in tears so what you're saying is when that's the argument the two of you're making well i think if you if you start with the in the business of language because that obviously determines whether or not there's coverage in that the great west policy and in turn it would also determine whether mr hanna's qualifies as an insured under a national policy and that's what the court found that in fact he does qualify as an insured under policy the only way that there would then not be coverage under national policy available to mr highness is if they can then meet their burden with respect to the exclusions that they are relying on and our position is they have not met that burden that judge miller obviously very extensive and i think well reasoned opinion explained by those exclusion and and so all is somebody subject to whatever other defenses you might have would share i'm sorry subject i mean you always you're that coverage is not an issue in this case so you could have noticed problems or some of the other problems unique you know in try to and ensure sure but other but basically it ought to be one or the other yes and i think you know my judgment has i mean that the reason so much time is spent in the braves and i think why judge miller started with the in the business of analysis is because again that that really kind of gets you a large part of the way through this argument because that phrase is used in both policies determines whether great west policy provides coverage and also determines if mr highness is insured and to actually defend the hiatus in the underlying was the underlying act lawsuit at this point is basically an act i guess informally stayed pending a resolution on the coverage issues mr miller is counsel as you know informed and he's kind of just waiting for a resolution to know which insurers going to be involved indicated i think this case really hinges a lot on the in the business of issue and certainly that's the primary and really the main issue with regard to great west policy and as i'm sure you've seen from the briefs quotes from across the country have  analyzed that phrase it's a phrase that's very frequently found in both trucking and trucking insurance policies fewer number of those cases have dealt with it with respect to repair or maintenance situations such as what we have here but some of the key cases are repair cases one is the hope of insurance versus occidental case from the seventh circuit where the court initially found the phrase is not ambiguous contrary to what national is arguing but that it means quote occasions when the truck is being used to further the commercial interests of the lessee and quote that is a meta civil you're talking about are in the business in the business and that that hope for a definition is the one that recognized in the national mental case and it's also a definition that the wisconsin supreme court recently adopted in two thousand and fourteen in the he see versus smith case which national refers to as being excellent pers authority and i guess i would agree with them on that i think that wisconsin supreme court did a good job of explaining that when you have these in the business of coverage issues and you have to look at the totality of the circumstances that these  well i agree it's going to great authority i know it's controlling too i would agree with that as well i think the wisconsin supreme court just maybe spells out a little bit more some of the factors that are considered but certainly the national continental case which we discussed extensively in our brief as well as in the underlying motions i do think is controlling at it but it doesn't get you past the exclusivity question no  element of course that's found in national's policy agree it has to be considered as a term that is not defined in the national policy so they as appropriate they look to a definition and they suggest that it should be defined as limited to possession control or use by a single individual or group and that definition that they suggest actually tracks nearly word for word with the federal regulations which provide that when you lease equipment that the motor carrier shall have exclusive possession controlling use of the equipment for the duration of the lease so in other words by a leasing these vehicles from mr highness every did have exclusive use control  essentially because you have this regulation requiring that when you enter into a lease agreement that the motor carrier has exclusive use and control in possession that in turn getting repairs certainly necessary repairs that that meets the exclusivity requirement and we did cite in our brief some additional cases from other jurisdictions that also talk about the exclusivity requirement all i'll confess that in trying to research that issue there doesn't seem to be a lot out there but what those cases discussed was essentially if your operating for a single motor carrier at the time that is going to be enough to meet the exclusivity requirement now national tries to distinguish those cases because in those particular cases a load was actually being transported i would concede in this case we don't have the same facts however what we do have within the record and as judge millette recognize it no time since mr highness entered into this lease agreement with anybody back in april twentieth levon did he ever use equipment to transport product for any other motor carrier and in fact under the lease agreement it seems that he would not be able to do that and meet the other obligations i don't look so on and i welling which is not the hardest issue for me at least there's a there's a reference to a two one of our cases under south dakota law in the were applied brief to which what's your response to that i don't know that there is any we are in the record severability provision to that contained in national's policy and what the court said was quote when applying the coverage to any particular insured the term insured is deemed to refer only to the insured who is claiming coverage under the policy with respect to the claim that under consideration and quote here obviously it is mr highness who is facing a claim so you have to look at this from the standpoint of of him being the insured and  the facts reflects quite clearly that miller was not an employee of steve highness such that the employer's liability exclusion what would apply well if why wouldn't why would insure client be protecting it that is possibly an argument that i can see being raised in the underlying case it's not you know an issue that we have raised at this point you know quite frankly you know going back to the point you made earlier usually on these trucking non trucking cases one or the other is going to apply and the courts do not like gaps in coverage what i what i don't know quite frankly is whether if there is work to sort of protect the injured person which is kind of a more unique situation whether that would be enough to address any concerns or you well i don't under most workers regimes you can't you can't recover from the name from your employer or your employer's fellow employees cracked and go if i know this is a fellow employee of miller the underlying lawsuit fails  like you said defense counsel could possibly raise that and your clients insured you know wins i mean it seems to me you've got a lot of positions by a great west here which are not as strong the insured as it could be well and i mean again at this point it's our position that he is not he doesn't qualify as an insured under that was policy we agree that he's going to be entitled to defense counsel the glass i'm  sorry who is in the insured has it and oh i know i mean he's got to be insured under neath under an cc's policy well if you find that he was exposed to be in the business and i do believe that is the appropriate finding i agree that national except if he's an employee there it's excluded correct but i don't i don't believe the authorities the majority view the grab that case and looking at that the severability provision which i think has to be given a fact you can't just disregard that under contract principles i don't think that's a proper finding or that exclusion applies determination we believe that the definition of employee in the policy ought to be used in the same context that the policy itself is issued and there's a there's a host of courts that have looked at that finish in the context of the federal motor carrier safety up there that says there has to be coverage under water both of these policies that doesn't exist this is not a situation where the plaintiff will be left without any recovery he has it's undisputed that he has worker's comp and he's recovered north dakota law also relied upon so if the eighth circuit rules are consistent with the universal underwriters case there would have to be some basis or reason under north to go to law to do so and i would submit that if you look at the northwest