favor of state farm and render judgment in favor of appellate the basis for this request for relief is that the lower court's ruling contravene george america insurance company versus nokia where when asked whether or not texas recognize any exceptions any exceptions to the eight corners rule the texas supreme court responded by saying although some other states such as maryland do texas has not not only has the texas supreme court authoritatively to the principals that control in this case but it also happens that judge really offer humbly and without any presumption was on a earlier panel of this court which correctly predicted in two thousand and four what the texas supreme court was going to do in two thousand and eight times i am not in a position to degrees or disagree your order but in this case i can assure you you were not in the northfield insurance company case vs loving home care the earlier panel of the fifth circuit made clear texas has recognized no exceptions to the eight corners rule and that it was unlikely that the texas supreme court ever would it has not since that time well you know that we have those unpublish cases since that time and it seems to be that we tend to think that there might be some exceptions in that we keep having these cases crop up with possible exceptions should we  for all fully aware of some of the inconsistent positions taken by lower intermediate courts in texas in the positions taken by certain district courts within this system because the texas supreme court had an opportunity an no exceptions to the corners rule if you if you lose on that eight corners rule do you lose do you agree that the exception talked about would apply before extrinsic evidence would be admissible the first criteria under that two part conjunctive standard is that it first must be impossible taking the facts as only that it looking at the facts taking them as true there is no potential for coverage stay form in the court room zero nor the district court ever have dealt with that first criteria under the controlling the first is the definition of a coverage triggering occurrence the second is that the state farm policy expressly includes in coverage certain forms of motor vehicle operation and the third  definition of insured with respect to a coverage trigger currents occurrence is defined add record site five ninety as being quote an accident which results in bodily injury to terms with in that definition i think are imperative to understand here and i'll start in reverse order because this makes clear all that has to happen is some conduct that result in bodily injury there is no proximity or temp oral limitation placed upon this concept of an occurrence the other create herm is this notion of an accident which is not a defined term within state farm's policy but it is settled as a matter of texas law that the term accident when us labial to policy milly refers to conduct on behalf of the issue insureds which here would be the richards which from the standpoint of the insured is not intended to conduct there's no one variant of intent nor malice so at that most basic level as to whether or not there had been facts that conduct without any intent to cause harm was a lead in the sta or petition absolutely those facts have been if you're but the analysis continues i think with respect to the concept of motor vehicle operation and what is critical in this case is that  does not categorically exclude operations of all of a motor vehicle of any causing as being a basis for coverage instead the policy makes clear that certain types of motor vehicle operations own or at the property will fall within the scope of coverage so we have to consider the definition of occurrence in the way that the policy treats the concept of motor vehicle operation in concert and when we do the policy taken literally means that if from the standpoint of the richards they engaged in conduct with respect to operation of a motor vehicle or one or a richards may certainly citizens with respect to the operation of a motor vehicle or one or at their property by allowing to seize jade meals to bernard the all terrain vehicle by failing to have on and so forth the negligent act happened at the property but the collision itself happened somewhere else all those beyond the record your honor yes the assurance of evidence that we don't we don't know where the accident happened on the record exception the exception as a first criteria says they're only has to be the potential that is covered any doubt is resolved in favor of the duty to the fans so there's potential coverage because the negligent act alleged occurred on the property that's absolutely right you are now come and that is the extent of the analysis that should have been gauging in here under a strict faithful application of the eight hundred rule earlier or if we get into the exception that does not exist under texas law that is the first criteria with respect to the exception but in neither respect to stay form all the court under the operation of the rule or the purported exception exceptions we're going to rely upon extrinsic evidence and although the putain exception to the acorns rule still requires it to be impossible taking is true the facts from the stake or petition to potential implicate coverage that we're going to we should be allowed to introduce extrinsic evidence to raise doubt as to whether or not there is coverage when the rule established in northfield established in zurich is clear that in all cases of doubt the issue is resolved in favor of the insured and the duty to defend a similar mode of analysis applies with respect to the effect before move on there's one of the issues that i want to point out that i think is significant although this is a home owner's policy of insurance the particular coverage provisions that are implicated here are found in section two of the policy which is a personal liability component of the policy so back to your question with respect to if the negligence occurred on the property whether or not that makes it more likely than not that we fall within coverage i think that is an additional consideration in addition to the actual terms of the policy which make that cl to be the case because the orientation of the coverage provision here relates to the conduct of the richards a similar analysis applies with respect to the definition of insurance in the court below stay far debated whether or not jane meals wasn't insured under the state farm policy and therefore excluded from coverage the definition of insured is found at record site five seventy six and there are two manners in which you can qualify as an assured on the policy you either have to be named in decorations j t meals was not all or as a threshold qualifying criteria you must have been a resident of the richards household in the state court petition in no uncertain terms jayden mills is a veered to be a resident of the home of his maternal grandparents the richards by contracts are hit by contrast or his paternal grandparents and reside at a different address here again at state farm in the lower exception that bases the eight corners rule on the language of a policy the texas supreme court declined the constantly is no basis for an eerie guess that policy language make any difference whatsoever with respect to the operation of the rule good morning theodore shultz for apple the please the court your honor your honors have already struck at the heart of this this court has ruled repeatedly that it's already made the guess that in fact under texas law the texas supreme court would be likely to adopt a rule that said that extrinsic so evidence is permissible in cases of coverage disputes find  explicit notation that there is no coverage if such and well we have to exclusions in this case inclusion thank you which i think actually apply and so i'm not sure how it would differentiate anything in this particular case now if you're asking would you have to have an explicit coverage issue i don't think so and the reason i don't think so is let's assume that you had a policy definition that said this covers everybody group a for particular sorts of loss and then you had somebody who was not in group a that's not an exclusion that's a policy definition but the effect would be the same thing you're looking at something fun to annele to the likely i think it's absolutely obvious that it's going to come in under the way the under way this court has ruled the i can understand that it might be a more varied issue if it's in a policy definition of some sort but i do think that here the policy is excluding coverage expressly in two ways i guess ultimately not an exclusion which one is not an i'm trying to think of the policy in vision in my mind it says that we cover automobile we exclude all will be else and in the auto it defines a all terrain vehicle accidents but it says that all terrain vehicles on the pop on the property would be covered it does not it but it excludes at least by my reading of it a t v accidents that take place off the property that is i think the exclusion that that's how i read it but your honor i don't have it in front of me and i don't want to say it wrong the policy is i must confess all tend to blur together after a ton but that being the case the language that you cited a moment ago your honor strikes to it says it is much more likely to be admissible but it doesn't say that it would be if it was a policy definition and to the extent that there is this disdain wished that there is up someplace where that distinguishing characteristic would matter i don't think it matters here in this case the extrinsic evidence shows that there isn't going to be coverage for the for this loss for two reasons first of all the deceiving was an insurance now i understand that there is a that he says i'm sorry that my opponent says that the deceit and was a very to live at one residence but should be a member of a household in texas aim a minor can be can have more than one residence and in this case we put forward evidence that shows that he was part of the insured definition that is the whole point the other aspect of this is where did the accident take place if our policy doesn't cover a t v accidents that take place off property the fact that the a t v accident in this case took place off property and but for that accident there wouldn't be bodily injury or negligence that's the test to determine where the negligence where negligence occurred where the bodily injury occurred getting away from that what that would basically do is for state farm to defend a case even though it can show that there's no there's not going to be any indemnification under this policy counsel i'm sorry can you tell me again what case you say that the fifth circuit has affirmative ly adopted the position in a published case my understanding from the start case your honor which is not published i recognize what published cases have we have when have we ever in a publi north the northfield case from two thousand and four but the texas guard one case is the one that you cite the texas high court having cited approvingly not just me your honor but yes the texas high court that is a case that i relied on sort of tacitly condoning of the northfield corrector in that case it dealt with these issues and it has sense been interpreted as being the court cited the texas supreme court sided with approval the idea of an exclusion and the cases there do you believe it matters whether or not there's that law policy language to be hauled language i think go ahead where i think that that provides an alternate ground but that is not the main basis of our argument is that what the district court relied on mainly the district court mainly relied on that to discredit like said opinion if he does because this is the second time he has made the argument what i would say though is that in footnote three of the district court's opinion he does make clear that he would also apply the same outcome to an eight corners rule in which you're not asking us to uphold the b hall recently and here today are you sir i am not your honor the reason that i am not at this point is that i don't think that it's necessary nor do i think that it is it is squarely before the court  i think that there is a policy argument should be made squarely i think that it is right but i can see why the argument would be much more shaded do you think texas would ok so we get off the be hauled rule then yes i believe that the fundamental issue in this case is the narrow exception as it's been described to the corner for all why shouldn't we certify to make sure that there is such an exception as i understand the courts that the prior decisions of this court have said that it is already in the guests and it should not be that that is undone now by certifying it to the chair why was it i mean if we're so guessing after  point should we could get absent a decision by the texas supreme court which changes the law i believe that the that there has been an eerie yes already made and that there discomfort and say we better double check this i certainly understand the idea that there could be a reason why the court has not addressed that issue i don't think that that means that there is enough to suddenly undo the prior decisions of an eerie guess of a panel if that is the case then there is no yuri jurisprudence and what happens is that every case will be decided in the of do you believe that we are without authority to certify this question in this case because of that i yes your honor i do though i recognize that you always have the power regardless of what my opinions and so your opinion  say that in north field i said it says that it is predicted that the court would if the court was going to address if the court was going to adopt and its that action it would adopt this narrow it so we don't but it doesn't then do that north node not so since northfield came out over four so we're talking in fifteen years and there's been occasions where the texas supreme court could have adopted but you agree it has been expressly recognized well maybe recognizes the wrong for it has an express lead adopted or applied unclear it doesn't seem unclear at all given what i've seen from other panels of this court the court has said that this decision has been made and that this has been adopted you talk about these unpublished cases i am referring to  what about the potential argument that it doesn't meet the exemption because it doesn't meet the first prong of when the exception would apply if we do have an exception i think that it does meet the first problem your honor because it does address extrinsic evidence is going to a fundamental coverage issue the coverage issue is whether or not the policy applies at all and it's not touching on the merits of the underlying os but the accident under the policy no your honor i don't think it does the facts that are alleged to leave open where the act that place and so the question of where whether there is coverage is is vital  but for a physical accident taking place none of the negligence that is alleged would have had it would have triggered coverage with it would have triggered a bodily injury it is the bodily injury that i believe actually determines where the accident occurred and whether or not coverage exists and what authority to cite for that the main authority that i cite is the v rayna decision which talks about the an auto accident where negligent training of a driver heard in the united states negligent supervision had occurred in the united states but the driver in question had driven off into mexico and the accident took place in mexico but for the physical injuries of that accident there was no loss according to that case it was the physical injuries that determine the place of the accident that determines whether or not coverage happened that is i believe the same situation here if we were to certified a question what is the question that you believe should be certified honor i do not believe a question should be certified in search and we understand that you know made a really clear and i appreciate that but if a question was to be certified i think that the question  i'm sorry i think the question to be then does the narrow exception to the the corners rule discussed  same question for you if we do certify what's the question what is interesting if your honor what has been clarified is what the exception would be in state form loses here because we know what the exception would be and they can't satisfy those standards the only question that the radically could be certified they would not make a difference here is whether or not the tech supreme court is finally ready to make clear we're not going to recognize that exception so wh articulated morefield putative exception articulated northfield articulated in zurich reads as follows quote when it is initially impossible to cern to discern whether coverage is potentially implicated in that passage is italicized in the original i spoke in the opening as to why it is not impossible to determine whether or not coverage potentially is implicated so what i'd like to talk about now is why on that second state form still is not going to prevail with respect to whether or not your coverage position in this case touches upon a cause into question the truth of the falsity of developments in the state or petition and the source that i will turn to to make the point that clearly their coverage provision in this lawsuit touches upon the online merits estate forms all respond to prove at page sixteen footnote fourteen state  form rights as follows ironically in an effort to plead this suit into coverage ms meals has pleaded herself out of a negligence cause of action a litigation that calls into question the substantive merits of the underlying cause of action whether or not the tick supreme court or this court in turn doesn't fact adopt the putative exception there's no question as to the criteria for the exception and state farm has not satisfied nor attempted to satisfy are those two criteria do we have to have the bodily injury under the rain a case that he cited the case is misguided because he talks about the case without regard to the actual policy terms that control here yes there does have to be bodily injury but the coverage partier is that the conduct has to result in there's no proximity limitation or too poor limitation and fact counsel mentioned the but for analysis it applies both ways but for the richards on their property allowing jade meals to operate a t v a lounge a meals to operate the a t v without a seat belt without a helmet except cetera et cetera the injuries would not have resulted so all opposing counsel has discussed is doubt as to whether or not the activity wheel or would not fall within coverage is there some sort of temporal assumption made like what if it was they bought him this thing and invited him  over would that be enough hundred if that was what was pled they brought this thing they bought this a t v and then invited him over but there was no injury no yeah i mean and then he's injured but but we don't know where he's injured that perhaps may be different because of this person alive billeted policy we are looking at their conduct as a fine for instance a term such as accident they invited him over specifically to ride this there's nothing inherently negligent about inviting someone over to ride in a t v what's critical with respect to the facts or allegations here if taken is true is that