my list of participants is too big i'm not good at this i had the same problem i was missing judge wellman for a while well there we are you did something you did something to come one by by before we still need mr mccarthy you know i think his camera is and associate electorate gas insurance services spire missouri is the successor in interest to the missouri b s energy division no southern union company so i'll be referring to the appellants generally as f or as missouri gas energy spire asked this court to reverse the history court's ruling and or cite contract between two specific ada parties according to the pla unordinary meaning of the words contained in that contract the district court erred in failing to enforce the contract according to the plain ordinary meaning of the contract terms and the district court earlier further erred and finding that the contract for utility locating services between n g e and us i see was a contract for construction under missouri's construction and indemnity statute the court also erred in finding as a matter of locating and marking services far underground utilities on by missouri gas energy to comply with missouri gas energies obligations under the missouri one call act in february of two thousand thirteen there was an explosion that occurred after a contractor struck and hit and g e s gas line and gas migrated into ga ga's restaurant and subsequently exploded that incident resulted in a series of lawsuits i believe there are a few more than twenty and they involve claims for property damage personal injury and one wrongful death and one c were identical there was a personal injury damages there were the wrongful death damages in this kramer's family and the property damage sustained by jay jay's and other property owners nearby  if we go to the contract that is involved in this particular case there is a broad indemnification provision it provides and it is fully supported by missouri law inde for any and all claims demand damages losses liabilities foods and causes of action every time arising or alleged to arise out of the negligent act errors or omissions violation of food or intentional misconduct contractor which would be us i see its employees agents or sub contractors just contract theory of moses was one that was entered between two sophisticated that relate to their actual or alleged negligence error emissions of us i see and all of the damages that were claimed in the underlying lawsuits all squarely within that condition and this is very similar to the analysis that the circuit applied in the federal insurance company vs great american insurance company case where the  fraud which was not related involved in that case and gross negligence allegations on the part of any employees of the management company for an apartment complex the court in that case found that  that claim or gross negligence in that particular case the party counsel i'm going to stop because i thought that was sort of what was important here was  well we believe we're entitled to that but we did not liability of rd parties correct your honor but as the provision was applied to the great american case once the condition was met the gross negligence was established it didn't matter how the underlying plaintiffs characterize their claim the court found that even claims characterized the underlying plaintiffs as simple negligence were covered because a condition of gross negligence was established and any all claims flowing from that gross negligence were covered by the indemnity provision when your feeling was sophisticated parties which you were in that case and which you are in this case now is a walk me through the application of the statute here and i'm asking specifically what negligent a or admissions violation of statute or intentional misconduct of u s a c were connected with any of the liabilities awards or judgments aspire what were the facts i can't figure that out well the the judge well with respect to the settlements we paid for the damages and it's the ties to the damages that connects us all up but that's not with this not with the  two different utilities located in this area where the line hit there were two electrical lines and then there was a n z gas line us i c mark the presence of one gas line and one electrical line and as a consequence the the gas like they did not identify it for the contractor no no your honor i'm not sure we're communicating that ok contractor that hit the gas line use the marks on the surface and they believe that they have located once they started digging in that area to expose the lines when they exposed to utilities they thought they had exposed what us and so you had mark on the surface a gas line and a one the electrical line when the fact that they did not identify what they were hired identified and that was all the utilities on the ground and we also dents that the entity that struck the gas line that had there been two red marks on the surface along with that one yellow mark that they would have continued looking for the gas b line because they knew that they had not found what was thought to be underneath the surface  very good they please the court counsel and the fund lawyers listening on the phone who helped me do their best to make me look good the district court correctly rejected spiers attempt to make a locating company  us i c and throughout the district court but a geisha the district court repeatedly noted that spire had framed it case as an all or nothing approach conspires briefing bears that out spiers summary judgment briefing asserted that  of the negotiations of settlements provided it no proper notice and its buyers fault because of how proceeded before the district court depositions were taken all experts were disclosed and discovery closed by the agreement of the part yet no evidence whatsoever was ever provided so as to apportion what amounts were paid and these costs and settlements at that time that were attributable to us i see what we do know is that their corporate designee admitted that they incurred no fees or defense costs related to us i c s conduct we also know this fire repeatedly declined to present any evidence as to abortion and all you need to do is look at  this statements of undisputed material facts to bear that out in both their motion for summary judgment and in response to our motion for summary judgment you see the following statement undisputed statement of material fac either in their petition or otherwise in the litigation indemnification that is limited to the damages attributable to us i c s conduct alone nor have the plaintiffs offered any evidence related to the amount of such damages  response undisputed but irrelevant that it's this and the about whether or not there's any need or somehow the district court needed to find make a finding of fault the fact of the matter is that spi consistent interpretation if this provision really says what spiers wants it to say then it's squarely within the missouri xantia dimity statute no fine except baltar necessary if the clause says it then the law brings  within its ambit and according to missouri's anti indemnity statute irrespective of its application to any particular circumstances if the agreement says what they say it says then it is quote unquote holy unforeseeable under the law and that's a problem for spire because missouri's anti indemnity statute would apply statute contains a broad far reaching definition of construction work when you look at how it defines construction work it says it shall include but not be limited to and then it's got a laundry list of items the courts have repeatedly recognized that when you say include but not be limited to means it's giving a representative non exhaustive not exhaustive list it's got kind of three sections all of which apply the  one is the construction alteration and maintenance or repair of any building structure or highway for it or pipeline in that section maintenance of any pipeline clearly applies here the missouri found that those levees and relief wells protected the roadways from flooding and therefore were maintained the roads because it kept them in a state of repair and efficiency the very same thing could be said of our marks on the ground we are protecting the pipelines and thereby maintaining the pipelines from excavators and errant directional brooms the nd provision within the construction work definition talks about or demolition moving or excavation connected there now we are bound up by a wall with every active excavation within the united states the law mandates our services when ever excavation has to occur to suggest we are related to excavation it is just absurd frank the provision that goes on it shall include the furnishing of survey against recognizing just as a nonexistent non exhaustive list our services are very extensive survey we take baths in france measurements and we use sophisticated electromagnetic witness box survey no reason th just goes on to say design engineering planning or labor materials or whitman in connection with such work again are locating laborers used to assist architects and engineers and design planning it's used to assist excavators in determining where they're going to put lines and that's relating to pipelines building structures highways bridges five x fences pretty much anything that requires excavation it's not a stretch that the district court found that this fell within the definition of construction work and at that point the clause wholly unenforceable numerous orks have held that then the court will not undertake to rewrite the agreement and specifically in the context of indemnification provisions and it makes sense because you don't want  incentivize someone to overreach and then have an illegal contract with an escape hatch it booker's one of the cases we side on that point that just an independent basis to affirm the district for if there's more even if the statute did not apply speier cannot recover because the language of the agreement does not support spiers all or offing interpretation missouri law will not indemnify a party for its own conduct unless such intention is clear and  extra lease there is a very clear limiting clause while it does say any and all claims it ends with the limiting language limiting the indemnification to the negligent acts errors or omissions violations of statute or intentional misconduct of try to focus on the use of the word arising or alleged to arise from what we cited a case directly on point blackshear where the court recognized that even if you say a rising were alleged to arise from that still it doesn't meet the standard of clear and unequivocal language indicating an intent to become an insurer for a gas company utility services versus miranda that doesn't save them that case had a very clear magic phrase in it right before the limiting language is said including but not limited to and then the limiting language which specifically makes the limiting language limitless because because then what we know is there something more than just the agenda tours conduct that could generate the liability extra for corrected nies that and distinguish it on the very same basis that it should be distinguished here didn't carry the burden of showing clear and unequivocal intent and if there were any ambiguities they should be construed against them but even the district court noted that if you look to the t moreover has this case amply straits there's very high exposure at issue here to sign on to ensure gas companies for every time the lines are marked is not plausible and that brings into another factor which is the huge public interest as this case also demonstrates massive amounts of property damage people injured and a woman died there's a huge public interest in the gas companies response to ghastly all of these  establish that they did not show a clear and unequivocal intention to become an insurer of fire that's another independent basis to affirm the district court but it also leads into yet another independent basis although the district court found it didn't need to reach this issue but that is the agreement would be illegal if it does what fire says it does missouri laws clear one may never exonerate oneself for future liability for actions involving the public interest hard to imagine of a stronger public interest in ensuring that gas companies don't turn restaurants in the bombs that kill and maim people in addition to that you can identify punitive damages and fires corporate does that means fires expert agreed that the payments were made in part based upon concerns regarding spiers own conduct and the risk of punitive damages being imposed against fire these also are independent bases supporting the firm and its and finally your honour's even if you ignore everything i've said over the past eleven and a we know that they refused to provide us i c with information during the settlement process and we also know that for the most part they did not obtain any releases for us i see despite paying massive amounts to settle these claims a burn rate of perhaps my favorite they paid experts in the state court litigation to off opinions adverse to us i see us i see them paid me to cross examine these experts to protect us i see these interests in the underlying litigation now in this case they want us i c to pay them for having hired adverse experts against us and that's again an undisputed fact it's paragraph thirty five dollars within our  each and all of these acts of misery law require discharge of any and in the obligations under any circumstances and this is yet another one of these several reasons why the district court should be  dollars of the contract it talks about the consequences of us ties us i z s failure to accept a tender and that particular circumstance it seems as fully conclusive the amount alleged or or didn't arise from us i z s negligence which includes all of the wrongful death claims the personal injury claims and the property damage claims in this instance you m c e is not asking this court to find that u means it doesn't just say it has to be a contract to dig a ditch or build a building well it does have to be part construction alteration maintenance or a pair of a building structure a highway  as a matter as a matter of common sense for me at least counsel on call aspect of this relationship means it has to be viewed as as construction that construction that's the excavation is construction and they're require to provide these services when excavation is going to take place i don't care who who they who you contract between us i see and he even was one for construction work and us i see was not building or construct an answer and that's your interpretation well there is no consideration paid by the owner of the project construction of the blizzard the statute what's your best supreme court of missouri statutory construction case well the libel case which indicates that you need to have a transactional primary one that shows that you have to have a nexus that does not exist when this contract between us i c and g was entered the construction project that involved the installation of cable of its obligations on the contract and for that and all the reasons we stay we request that the court reversed the judgment of the district court and remand for further proceedings consistent with the court's interpretation of the contract thank you yes will once again we have a complex case that's been very very effectively has argued and argument has been helpful we will take it under advisement and can't