is a motor vehicle wreck caused by a drunk driver an accident under texas law i'd like to begin by briefly speaking about why procedurally speaking that is the one issue that this court faces today and then spend the balance of my time explaining why the answer to that question is yes a motor vehicle wreck caused by a drunk driver even a grossly negligent drunk driver is an accident under texas law because that is what the typical  typical consumer of liability insurance would understand the term accident commonly mean for sweetness procedurally speaking first is the court's aware cincinnati briefed three grounds  for summary judgment below and has reemerged all three of those grounds in its response here today the district two of those grounds were based on the policy language the first of course is the act in the finishing dispute that we have here today the other was policy language dispute concerning the permissive use whether or not mr sanchez the tortfeasor had permission to use the insured vehicle and then a third argument from outside the policy language you know notwithstanding what the polic the policy language covers the dispute at all and only then do you move on to consider the public policy question assuming that there there was a finding of coverage below procedurally speaking we agree with what the district court did in this case it was correct to first consider the accident issue and though we certainly disagree with the resolution of that issue it was also correct to terminate its analysis there and there was only one decision made and the district court generally speaking of course is a court of review not a quarter first impression because there was only the one issue reached below that certainly our position that the general rule applies because and i shouldn't so you're saying you want us to reverse  references and it's briefs the mentor line of cases and of course you know the one that they rely on most heavily is an unreported decision by this court in two thousand and ten holding that you know a drunk driver public policy precluded coverage and that close to let me just say well since so you know let's start off with the instinct instead of trying to explain to us why we should address accident explain to us why texas law precludes covering this an accident oh why texas law ought to cover it excuse me in light of callan and the gross negligence finding of the jury yes your honor be happy to thank you accident in texas are unintentional then you have an accident period end of analysis the courts have further explained that even a deliberate act performed negligently is an accident so long as the result of that conduct isn't intended or expected the case law uses language such as natural and expected or things of that nature but with respect negligently and would have been different but for the event of that negligence is an accident under texas law well then again i mean the you know judge rodriguez is no slouch on these kinds of matters sunny says fifth circuit is held a deliberate act is not an accident if the resulting damage was highly probable because who is a natural an expected result or the insurer well that's the relevant and was found grossly negligent it's defined as an actor omission which when reviewed objectively from the standpoint of the actor involves an extreme degree of risk considering the probability of magnitude of potential harm of which he has actual subjective awareness now he basically admitted that binny during the trial your honor i don't but in any case that's what the jury found the jury found that mr sanchez was grossly negligent and your honor the greatest two points that i think are very important it absolutely is fifth circuit precedent using the language highly probable i think it's worth considering what how the probable actually me probable means more likely than not highly probable necessarily even more something more than than more likely than not that's not what you have in a gross negligence case or a drunk driving it's not the case that a drunk driver is literally more likely than not on any given drive going to cause a rock what you have in a gross negligence drunk driving case is that the risk that the driver will cause a rock is substantially higher than that of a normal driver hired to a system degree that's unreasonable in society and therefore you can hold them grossly negligent it doesn't mean that there was a finding that they had a rack where the failure to yield the right away or some other you know negligent act of driving inevitably follows and therefore causes direct it's possible that the deliberate act of driving while intoxicated can be done correctly in  that the driver can make it home safely do you have authority from other jurisdictions for that i don't your honor if the court's interested in seeing those i would certainly be well i just say i mean it just amazes me that there seems to be not a lot of a clear precedent on the subject and we went to some of the treatises some of the treatise is certain even not you know definitive your honor i think our position would be that that shows the  that is very powerful and directly applicable to to this case you know reading insurance coverage so that you know a reckless act or grossly negligent act absent deliberate injury is sufficient to forfeit coverage would render insurance coverage illusory for many of the things for which insurance commonly purchase insurance the rest of the quote is you know in the brief i don't need to you know be cited here for the court but there's an expectation for an image a liability ensured that these sorts of things are covered the the general common understanding of the word accident is that it includes acts caused by drunk drivers absent that intent that's really the gist of the position your honor as the court knows our brief was shorter than than usual and because we think that's you know really the one issue this court needs to resolve i'm happy to answer any other questions that the court has well why should the state of texas cover punitive damages in insurance policies if the if the court decides to reach that question of course fairfield is the the civil case that spoken directly to that you know asking or i'm sorry answering you know this court certified question i think it's important to distinguish the majority opinion in fairfield from the concurrence in fairfield by chief justice act which had stronger language in it the majority in fairfield was it was very hesitant on the ballot yes because the public policy in texas in foreseen contracts as written is so strong what you have here is a sophisticated insured certainly capable of excluding you know gross negligence damages if it that's not the way the contracts written you have the standard language that the unsophisticated injured is is relying on this is developed further i'd click and direct the court to although it wasn't directly said in our reply brief we do cite to and provide the court with our response to the summary judgment below and we watched this you out in a little more detail but essentially it's that the there's multiple factors involved they go into an exemplary damages award some of them are directly you know punitive in nature but some of them still refer to the exemplary nature of punitive damages the objective seriousness of the award  well but the majority opinion balance the right to contract against statutory overlay and i held that in that situation which is workers comp the they concluded that the absence of an exclusion for punitive damages was not controlling so what's a statutory overlay that might apply an automobile policies i don't have a starter tory overla honor our position would be that this balancing test needs to be struck on on a case by case basis and that distinguishes i think it's important from the ground that the district court originally ruled on which is this this general definition of accident that applies in all of these cases you know if the court is inclined to take up the public policy question as opposed to following the mentor line and you know allow any consideration of a permissive use first  then you know i think it's important to make sure to correct the holding below before you move on to the specific case analysis it be easier more prudent if the record to be more fully developed close absolutely your honor yes mr sanchez directly expressly testified that he had he understood that he had plenary authority to use this vehicle for personal use that testimony in of itself you know across like cuts across the board distinctions all of cincinnati's cases it's not a situation like that there's an absolute fact issue and that the cincinnati i'm sorry the insurers in the in the original personal understanding whether or not there's permission and based on that testimony and the other evidence in the record determined that he did have the right to use that vehicle and that was negligent for advantage the insured to allow to do well and trusting is one thing but whether he ought to be covered is another thing don't you think it is another thing your honor which is why we have this second collateral litigation but some of the same evidence still applies and the fact of the matter is like the  permissive use line of cases also says that you look at the injuries understanding and we have direct testimony from mr sanchez that he doesn't remember seeing the policy that says he couldn't use it for personal use he thought it wasn't just that he could use it you know to get from from place to place on his job or after hours he thought it was his car and that's what he just of i do and you know the summary judgment stays that's a fact issue for the jury to resolve all right and i guess that's it if you have time for a battle if you choose thank you and i'd like to keep that up thirty seconds thank you the court at the beginning of this hearing asked us to cite the court to any portions of the record that we felt were important and i believe is his hard work concern the portions of the record that is important for the court to focus on is fourteen forty two through fourteen forty six those are the jury answers and verdict to the question that were before them and the first question with regard to negligence i believe it arguing over what was the conduct and frankly the initial jury question doesn't really define what the conduct is but the court can parse through the record and try to decide what that conduct is but then and i think this is what's damaging to the appellate case you then go to the jury questions on gross negligence and now the jury answers t questions and it's by clear and convincing evidence not preponderance and the jury is affirmatively finding that mr sanchez when viewed objectively for from his standpoint at the time of the current  involves an extreme degree of risk considering the probability in magnitude of the potential harm to others and secondly the sick mr sanchez has actual this would change texas automobile coverage very very broadly don't you think if the reasonable i mean well you know i think it's maybe statistically reasonable that drunk drivers cause an inordinate amount of accidents or drunk and they may be in the bridge because many things including the increasingly legalized use of marijuana but well that's right and i've always assumed that if you got run into by a drunk driver your insurance policy would cover it as an accident but you're saying if the driver can get to trial and get a gross negligence instruction it's not an accident which means that it's never covered to begin with because i mean why would there been a negligent entrustment if there was no accident fairfield wouldn't have had to cover mr fit fred a king's original damages correct it's run it but i think the point of the issue is with regard to negligence which is going to be compensatory damages which is going to be your medical bills which is going to be actually done is accident free for compensatory  right it can depending on what conduct you're looking at your honor you know so that's the threshold to coverage well what you're saying is right right it is a threshold of coverage but in order to determine if there is an accident you have to look at the factors in the circumstances that constitute that well let me give you another example suppose a person has poor eyesight and they could there you know they have to drive with eyeglasses and then something happens in the family so that they have to go venture out onto the road without their glasses and they have a klystron you're saying that a jury could determine in retrospect that was gross negligence and they could  honor did not find that or the neck which is finding did not speak to whether was fortuitous unexpected in own intended to vent but we can conclude it was just on the facts of that accident but when you go to that that's the definition of negligence but when you go to gross negligence you now have a fine by the jury that he knew what he was doing he knew he was just as you're on the road but i was saying this any insure r would dave would defend under reservation of right as to compensatory damages exactly correct yes can you answer judge jones is question what was there an accident in the hypothetical about the glasses tired there at the office late they're working to midnight say hypothetically and they drive home very very tired and they run through a red light that's actually question your knowledge of the gray area you're not you're not into a jury has value wait what did he know did he appreciate the dangers that he was created oh so so there's a line between being very tired and texting what about putting on makeup in the car how about eating a sandwich while you're driving at work or smell understand accident so intentionally drinking at the bar intentionally texting intentionally playing with the radio intentionally getting very tired at the office intentionally putting on makeup intentionally driving without your glasses all of those things would be sufficient to not make it an accident it would not be an accident your honor if you knew the risk you knew the magnitude of the risk that you were subjecting the public to and decided to go ahead and roll the dice on it because gross negligence is we know from the cases the purpose of it is not compensation it's what it punish well what it's punishment it's what cases can you cite around the country that upheld the gross negligence i'm sorry the drunk driving is not an accident under an auto policy i don't have a cite to give you don't you think i mean as he said don't you think that demonstrates something demonstrates that the issue has not been brought up yes it is it could be a very base out there than it really sick uses terms but but potentially yes roger what about somebody who's driving very quickly to the hospital because she's in labor it's an emergency situation around that that is a very different situation but if she intentionally runs a red light because she's trying to get to the hospital well hopefully it's no definitive authority on it it's an it's an interesting notion that i hadn't thought about iran but i think there's enough here i mean you're asking us to make a decision that would be extremely consequential for auto insurance liability  i'm asking you rather that it would mean that everybody who really ups for their auto insurance is going to have to start asking answering questions about how often do you consume alcohol do you consume illegal drugs you know and if you're the courts concern well suppose you lose on that issue suppose we disagree and you're free to make the arguments and i'm not you know telling saying that we have prejudge that issue but other issues that you raise on appeal i mean that the public policy of texas is that they don't want to insure gross negligence conduct the purpose of r the punishment that by state law is supposed to be awarded on the driver where the driver can then lateral that punishment to the insurance carrier pay for it and then the ho  mr sanchez saying i thought i was able to drive because nobody told me i didn't have to and so i assumed that i could and there's ripley in the record evidence of documents that he signed that  supposed to drive on personal business never supposed to drive when he's drunk there's a lot there's lots of instances in the record on that that indicate he knows that can't i guess the question for the court would be can a question of fact despite a mountain of contrary evidence can it be contradicted by the mere statement of i thought i could because no one told me i couldn't and it doesn't matter how many documents that i've signed and i believe i don't have a right from me but i believe the standard according to the u s supreme court in andersen versus liberty is no reasonable trier of fact who'd have found for the non movement covered versus right yeah what would have been the situation with the negligent entrustment then i mean if he if he was could be driving a case against company policy nevertheless the jury found that the company negligently untrusted i believe with the the the judge instructed the jury to find negligence against the company i believe the compared negligence was forty percent against the company and sixty percent against the driver to cincinnati i mean against the employer yeah i do i mean that seems highly unlikely but i could be wrong i well well maybe mr snitzer can answer that on the exact negligence submission submission to the jury was are we know that the verdict only asked about negligence and they were struck that the find it so if i was under the impression that the  permission so that seems to be that the key question is who has your permission and then as i understand the way this works is that it vantage provides to mr sanchez and other people who they're authorized to use their vehicles a series of other documents that say things like don't drink and drive don't you know use personal errands that kind of stuff are those cincinnati documents are those the documents that advantage provides to its employees and contractors and other people are using it vehicles are those also part of the cincinnati policy are those things that advantage does viz a viz its employees without the insurance companies knowledge involvement contractual obligation and cetera i would have to be totally honest with your honor i don't know the answer that question but i know from just from having practice in the area that i do not think that those documents are provided to cincinnati but i really don't know  you i don't think so and i don't think that we don't find it an interesting case because we do yes schnitzer thank you your honor very briefly to answer the court's question about the jury charge the record on appeal at one four four two is that page of the jury charge the court instructed the jury to answer yes as to carlos javier sanchez it regarding negligence there was no instruction as to advantage essentially so the jury made a finding on negligent entrustment correct your honor ok two very points your honor and i think the first one was essentially made for me earlier but we have here the stakes are for the definition of accident because it's in the general liability clause of coverage and you can't have a situation where alleging gross negligence or or alleging you know some sort of intentional serious prior act pleads out of coverage and that's that's not texas law and i think the court understands that  as to the permissive use issue that was briefly brought up by judge joe again that the district court expressly didn't reach that issue that sort of review of the full record that's a classic issue for a district court on first impression if there's credibility issues involved obviously we go all the way to assign to a full trial on this issue rather than determining the credibility and context and having some sort of judicial decision as to you know why mr sanchez until nine o'clock tomorrow morning