mr nerem thank you very much your honor may have pleased to court good morning as the court is aware the issue in this case is whether this insurance policy in its uninsured motorist coverage under the facts of this case provides coverage for a drive by shooting the issue is whether such a shooting a rose out of the use of an old automobile or other state supreme courts from white to south carolina from minnesota to oklahoma that a found as a matter of law they drive by shooting are covered under the uninsured motorist provisions like we have here here however if the parties agree we're here to discuss missouri law in whether under the facts of this case missouri law provides for coverage i'd like to talk about it in the context of the most recent missouri case that is discussed issues similar to this and that's the walden case the two thousand and fourteen case of the western district missouri court of appeals in that walden case they had a pretty broad survey of what the law in this area in missouri had been up until two thousand and fourteen and there have been no cases that either coun discovered that have discussed these issues sense that what it started out with is what it described as the seminal case in this area and that schmidt versus utilities and that is to missouri supreme court case from the fort in that case there was a truck that was delivering coal that had put wooden blocks on the sidewalk that somebody tripped over what the court found importantly is the concept that was reaffirmed by this court as recently as two thousand and three and that is when we have a rising out of the language in an insurance policy it is interpreted in its broadest possible meeting and when we say arising out of that doesn't require proximate cause ation it doesn't require causation it basically just requires as other courts have put it some nexus between the use of the car and whatever happened that caused the injury in this case is really when push comes to shove no different instrument versus utilities and schmidt versus utility it requires more than but for causation not the way you're the way you're using the word nexus it sounds like that is that it's something less than but for causation well there is but for causation that required ultimately prove the case in terms of finding coverage which is the issue we're having here there has been no requirement that we find a but for causation we do have but in walden there clearly w but for causation and there wasn't coverage there was in what they talked about it in any and i think we're arguing semantics judge because what they talked about in schmidt was you can't have an intervening cost which if you will if you want to label that is but fo there was a dog in it somebody got it and the driver and the owner was in the car and the owner was in the car ok well that's not insignificant yep and what the court found was that if we're going to go solely on those facts and we have no other facts about that if you read the wall that opinion that was the real criticism of what the plaintiffs had done in that case is is that they had basically agreed with the same facts as the insurance company gets and what they said in that case was look what the it what the pla trying to do here is he's trying to create change the law i'm not trying to change the law because what i did as opposed to what the plaintiff did of walden was in our case we have developed facts that show that the m law you want you want us in your briefs to assume that this is that this is a fact intensive issue and therefore summary judgment was wrong whereas weldon clearly says it's an issue of law  it says on the uncontroverted facts and wall them it was an issue of law i don't yes what controverted facts do we have that makes it something different here whether the car in a drive by shooting is the instrumentality an issue still maybe of law but as far as i'm concerned and in insurance insurance coverage cases almost always the parties have to move for cross summary judgment and i did not hear your honor well but what he what did you  contest in the district court did what as a factual matter precluded summary judgment i get your interpretation and that but that but you also want to hint you want to you want to swerve us into the notion of no summary judgment and then it's sort of almost dry by briefing and well it let's talk about that in and it's an issue of what i did in the district court and what to to pass the summary judgment motion that is that he talked of who you can argue about whether it's a factor you can argue about whether it's a conclusion either way it's something he's entitled to testify to they didn't put on can the conflicting evidence right there was no conflict you know ok so here's his view i suppose i don't i don't know if the i don't know that the the judge didn't say that he wasn't credible i thought he did not so the judge obviously took his his opinion as as the credible opinion of of a police detective who has looked at many drive by shootings from a completely different perspective than coverage and taking taking about whether whatever judge for detective sweeney said is correct or incorrect detective sweeney is entitled to advance his testimony as to what the ok but procedurally what happens next sure happens next is the judge required then to find coverage based on sweeney's testimony absolutely not because the judge you're saying he was required not to grant not to find no coverage it becomes a factual issue for the jury your honor the way coverage is never a jury question under missouri law that is your honor that is something bad is often stated but not quite true because under missouri law you can use an advisory jury but that he doesn't get the question of of coverage they get the question of fact as to what the purpose of the car was and whether it's service in instrumentality it just like any expert in any case judge can testify as to alternate facts and points out that instrumentality is just a word of convenience in the case interpret ing the legal principle what they in what they also said and what walt also said and made specific and i think it was the second the last footnote was if we had developed different facts or if we had developed additional facts beyond what we had presented by the plaintiff which wasn't anything really then we may have reached a different result and the reason why we may have received different result is if there were facts developed that allowed us to find that a car can service the instrumentality of whatever whether it's a dog biting somebody in walden or here whether it's a drive by shooting then we would have come up with a different conclusion as far as what the summary judgment was concerned and whether that went back to the juror ok let's assume it's an issue of law and proceed with that on that basis ok well i mean that's that's that's the way the district court decided it and i  don't disagree judge and obviously that is the way the law than court decides no that's not quite the way the wall in court sided your i said they said on the undisputed facts as a matter of law there's no coverage because there was no facts developed to show whether the car service policy did not have the arising out of language number two there were no facts to bell up in that case either number three is that as of the wall the case pointed out ward is a bit of an outlier in that they added a requirement that smith versus utilities did not  in for these kind of things they talked about an inherent use which really no other missouri cases found and finally i would note that the new jersey case that was the basis of warped ward and their ward relied on the reaches decision was subsequently rejected by the new jersey supreme court in its rationale in which they talked about this nexus between instrumentality in the use of the car and drive by shooting what was the policy language in ward in ward it was resultin from it wasn't arising out of the use of the same word use absolutely and but it and i don't think there's a lot of dispute about use the issue is how far we go in use if it's resulting from the courts of interpretive that much more narrowly if it's arising from like we have here the courts are given a much more expansive definition what's your authority for that particular point that arising out of the resulting from or schmidt versus utilities  to prove plaintiff's case plenty of has the burden here to put their case in to prove that their case falls within the coverage of the elem general policy they had an opportunity to do so rule fifty six provides if there is more discovery be done you can do more discovery but the reality is there was no discovery done because there are no more facts this is a drive by shooting this is exactly the walton situation where the only facts you have are those facts that are presented with detective sweeney actually testified  to in their in their briefing they called it he said it was into row but he didn't say that in their statement of fact they said that it was instrumental they didn't say that he said it's a mechanism and of course it is a mechanism if you pull up a car and shoot somebody the car is the mechanism by which that allowed you to pull up and shoot somebody but the basis of the liability is the shooting pulling up in the car isn't the crime or isn't a civil infraction it's the shooting that's the basis of the liability don't let me let me go factual here i've  got the facts law question but in terms of distinct distinguishing or not distinguishing this from all them and perhaps ward was there coverage for an intentional hit and run under this provision of your client's policy there would be coverage for intentional hitting ron if you define hit and run as running your vehicle into somebody's yeah as opposed to because because the the hidden run is it's used in the policy refers to contact that actually caused the collision or condo mean that caused a collision so hit and run is to find broadwell it doesn't have and we we know from the very cases that the  vehicle itself doesn't have to do the injury well it's that all of the if if it's an intentional hit and run and the injury inflicting mechanism was a log in the road but the uninsured the uninsured are identified vehicle and its driver intended to strike obstacle and send it into the car or the person who's insured correct that's so you're saying that's covered a intentional hit and run if you define hit and run is running the vehicle into the other vehicle  the liability for the bodily injury arising from the use of the vehicle so the vehicle is used to force somebody off the road and there's no contact or if the vehicle is used to ram somebody and there is contact that  where absent something else that might preclude coverage there would be coverage because the vehicle is being used and the well the vehicle here was moving i think the facts were negated vehicles not moving at the time  by the occupants are by the vehicle i know that i know that's what you want to debate limit limit coverage to injury inflicted by the vehicle and not by the occupants the vehicle was moving so if the v if the vehicle had head an improperly secured bicycle or canoe that fell off as it drove by and struck the insured your client's insured or or is her vehicle that become right because the the liability stems from being hit by the canoe which was being towed or carried by the vehicles with the use of a vehicle to carry a canoe that then resulted in damage so if the if the occupants had held their arm out of the window as it drove by and and struck the insured in the in the face they are not covered closer call the probably not covered at that point time because it's the use because the vehicle over was accidental if the dog was hanging out the window and the vehicle had been moving in in walden and the dog instead of biting that it had struck during the operation  vehicle if the dog had come really close and flew into the road and somebody swerved off under those circumstances i think missouri courts that have looked at this issue could indicate or could find that in fact that does constitute that the liability does arise out of the use of the vehicle in those circumstances because you're using the vehicle here that the focus of the cases like ward like ford are to to address the a vehicle was being used to inflict injury the gun was used to inflict injury and what the what the missouri appellate court was a gun a gun as opposed to a fist makes the difference in coverage and lemons we had a fist in the lemons case we had a lemons case  brief it's lemons versus prevention all eight seventy eight southwest second eight fifty three it's out of the eastern district and it's one nine hundred ninety four and the insured was rear ended which then resulted in a fistfight between the occupants of both cars and the victim of the assault then saw uninsured motorist coverage and the court found that there was no causal connection between the assaulters actions and the use of the vehicle frankly only in that case that one sounds easy frankly much easier in this case well i think it's actually i think it's actually harder in the sense of that vehicle just like in this case that vehicle brought the assailant to the scene but for that vehicle bringing the assailant to the scene but that vehicle also rammed into the other but that vehicle wasn't being operated at the time of the assault just like the current and w the but whether or not the whether the but the operation of the vehicle itself again the focus of the cases like ford and ford and lemons and wald and have been on what is the what is the actual liability  there's no viability for simply driving your car pulled up next to somebody there's only liability for shooting somebody so the car in the circumstances the missouri public or not of your focus on liability doesn't jibe with with the breadth of the  rising out of this described and schmidt but that's what that's what aree arising out of use but that's what the elem general policy says it doesn't say injury it says bodily injury from which the liability arises out of the us it doesn't say it does it actually and search the liability portion so it's the liability that we have to focus at and it's similar language to what's in war and obviously there are questions about the resultin actually treated them the same as i recall schmidt was arising out of ward was resulting from but there's none where they've sort of compared and contrasted those terms that i could find am i wrong about that you're not wrong about that you're exactly right on but but since hundred sixty seven when the when section three seventy nine was put in place that required uninsured motorist coverage section three seventy nine uses the term arising out of the use and so policies whether they say resulting or not the court is going to read into them the term arising so either you can treat them as synonyms or you can read into it but what ward clearly did is it looked at the policy language and then use the arising out of analysis so regardless of back and take a ten thousand foot view of this i wonder if what's actually happening is or some notion of probable arch to meet proximate cause that is being brought into this by the missouri courts the very courts are kind of all all over the place was different cases sort of saying slightly different things but i wonder if this is really just a question approximate cost of the lot of the hypotheticals the judge loken gave or just a question about how cars how closely cosily related these two events are the i on percent agree and when you and inherent in schmidt and hared in some of the cases that will then down under eerie we have to we have to put those cases aside but it's not a proximate cause in schmidt but schmidt says you can't do proximate c says expressly you can't approximate so i was very courts of appeals and i are if we come to the conclusion that that's what the missouri courts of appeals have done without admitting it then we're then we're obligated under here either ignore those cases and i don't believe that they are doing that i think what they're doing is something this between but for and proximate cause and which is exactly what the schmidt court directed them to do there has to be a causal connection that links the use of the vehicle and the cases that have found that causal connection such as whitehead they found that the actual driving of the vehicle was the trigger that then in fact white had had a shooting but it was the driving of the vehicle that triggered the trigger and under those circumstances that's really not proximate cause in fact that wasn't even the basis for the claim in the underlying case so it's not proximate cause they're doing but they're saying it's more than but for but it's less than proximate cause counsel don't we get to the same place by focusing on the word use which is in the policy in concluding that this was not the  look at use in the context of whether it is a proximate cause or both for the what the kick what the courts have said clearly is that but for is not enough that is not a theory issue and their record that they created with all the evidence they had is nothing more than but for and because it's but for only as walden tells us it and we have especially every district within every public district within the state of missouri has ruled consistently on this issue walled in from the western district that incorporates all these cases from the eastern district of the southern district so we have a consensus frankly that i haven't read lindstrom but as described in the poem and constant reply brief it sounds much more persuasive than than as to why this this arises this arguably iraq was arising out of the use of the vehicle yeah elements from case and a subsequent decision from that same from that same supreme court of that state luncheons been limited to  because of pick statute personal injury protection which missouri doesn't have to pay but that state has pip pip claims have a much lower threshold for proof all they have to have is an accident and injury and that's it they don't have the arising out of the use of language that you have in missouri's un klein so this whole argument about lindstrom and its application one it's just that a red herring but two it doesn't matter because none of that is binding on these courts that have