looks at risk and it has to obligations were three rather in this particular case st is what is the risk that in the insurer is insurance what's the insurer doing number two if it's a vehicle what kind of vehicle is the insured operating its business with and three how do you template that against the statutes the regulations for motor carries which are highly regulated under both georgian and federal law as it relates to that in the quarter where in looked at the briefs this tragic situation a dump truck came off of a napa auto parts store algonquin x county bad brakes close to a gallon of water and it's brake lines hit in killed chase been he was on his way to a part time job  very tragic circumstances the issue as it relates to the legal issue in this case is is there any evidence on a summary judgment standard whether or not this particular insured is engaged or conducting motor carrier operations for hire we believe the answer to that is replete throughout the record and the answer is yes they were in this particular case kirby great with regard to that point do we look at the state of the record as it existed when kirby filed for coverage if we look at what zurich knew at the time or does the lens go beyond that well that the limits i think that's an accurate cabin to some degree your honor you have to look at it again from an insurer's perspective insured sense and insured smythson application in this case the application was clear using searches on software and that's pointed out in the record that these were all commercial vehicles under georgia law and regulations there's three types of vehicles a commercial motor vehicle exceeding ten thousand and one pounds a nd type exceeding twenty six thousand and one which is what you would typically see for motor carrier for hire policies and then there's in the georgia rules and regulations also what's called a lightweight commercial vehicle which is typically pick up trucks those things that are operated by a commercial motor vehicle operation we have two of those here we have clearly on the policy in judge may in her ward said it's not relevant because georgia law has not adopted the federal motor carrier regulations as it relates to weights a vehicle that's just flat wrong and i can tell you why you're on under our i listed on my policy commercial motor vehicles you understand through your investigation that i'm engaged in grading and hauling operations in there's a specific exhibit in this case where desserts had underwriting guidelines or it understood that if you insure and land grading operation in one go it may not have for higher authority from either the georgia p s c at the time of this incident or number two the federal motor carrier you still have to look at it and if they're using their in their language being operations either directly or the something out work to get folks to haul they do what they call grabbing work you aren't stomps broken up concrete taken just basically on a circuit from the site you're a gauge to motor carrier operations and in that exhibit and i'm trying to share the scrum but i can't get it operate i was going to go and searches on underwriting guidelines where it says even though the insured is not engaged doesn't have an mc authority which is interstate or under georgia's rule the what's called the unified carrier regulations statute where you have to register as an interest state carrier your honor you still have to look at that and if they're doing that their own underwriting guidelines says you have to make it and in their underwriting guidelines they call it public utility fallings in this case it's the georgia public service commission you still have to file the for me which is the certificate of insurance in the case and then when you go to cancel it which is the issue in this case you have to issue the form pay otherwise that policy coverage is continuous engaged by right construction to build basically a map of the auto parts store around gwinnett county but right then subbed out the work of getting the site cleared and the debris and dirt off the site which entails motor carrier for hire operations on george's roads to get it off the site that was the agreement right sort of wasn't the landreth says the director came for we're doing hired lander as his son and another carrier greasing hauling to assisted in removing the door what happens you are typically on the sides and you may have seen that man is big dump trucks lined up and they may have various motor carriers you may have seven different motor carriers in line kirby hired that day because of the ball you might dart to breeze stumps to i understand that but my question law define what kirby is doing as a motor carrier for heart if you're a moving dirt stumps and you've agreed to take on that obligation landers didn't agree to it recent didn't or nine other sub s didn't agree to it kirby did it it is it's contractual obligation to get those products off the site to a dump site dump get a dump to can turn around and do it again it i any evidence in the record that that kirby owned this vehicle they don't have to you are because you missed a section subsection o c ga forty six dash one dash one open prince six and then also the case sat v can now in the tensing cases it's routine what's called statutory employment under forty nine c f r three hundred and ninety point five and then the it does not is the road does not end no pun intended if you're a motor carrier but you routinely engaging that goes on every day walmart may have five thousand trailers out today and only have fo nine hundred power units it has no written agreement but it engages a rd party carrier to assist it in its motor carrier operations it agrees to pay off of the low bord website a particular mount yawner they become wal mart's agent for that particular load its policy will follow the trailer if it's hiring them just on a handshake deal or  nine exhibit one a which is the ga p s e regulations and you go in there and you found through those at chapter three chapter four and chapter seven of those four explicitly chapter of those p s a wrecks explicitly adopts three hundred and ninety point five the leasing regulations and it's very precise and pedantic definitions of statutory employers and for hire operation motor carrier operations were tax or excise tax and there was a particular carrier that was saying that it's hauling dirt debris stone asphalt concrete those type of things off of the saw i didn't make it a motor carrier are engaged the fact that you're just hauling dirt and debris off the site doesn't change that you're for hire operators in this case it doesn't change that kirby's of for hire operated the fact that it chose not to purchase vehicles and instead agreed to lease them or stub the mouth when they had large hauling days does not change the fact that it is a for hire carrier and that it is leasing and making these folks their statutory mr jackson can you hear us yes or i can hear you sir you know we froze for a for a moment i think we've taken you way beyond your time in the that were those were our questions so if you want to wrap up you've got thirty seconds to do so and you'll have a long and complicated history indeed this is the nd case in which the bins are tried to create insurance coverage where none exists has already previously declaratory judgment action which they argue that insurance policy grading applied for this policy it did not tills or that it was a motor carrier it did not say that it had to connection between the way interest was with greece and there was no connection whatsoever between kirby grating and way under us and indeed there was a special verdict form at the trial in the case below in which the jury there found talk about that equitable restoration session trackways lawyer i guess the district court correctly held that there was no equitable basis to reporting the policy into a motor carrier policy because under in an activity wherein for compensation it furnishes a motor vehicle in driver to a person for it to haul materials on the road kirby grading was not that type of event it was a grading could interrupt you for one second please mr jackson says in part it's brief and hear an argument that zurich's own underwriting policies indicated that a company like kirby  was supposed to be designated as or considered as a motor carrier what do you say about that underwriting document he's referring to there are a couple of issues with it number one it did not become in effect until october st of two thousand and five which was after the policy in question was issued after the accident in question nd the testimony in the case is that underwriting document only applies to an interview that is part of its application time the policy was issue insecta hell after the policy was issued in this case did then underwriting document come into existence the policy in this case would have been issue february two thousand baht and that underwriting guidelines from october two thousand but the key thing is that guidelines would not apply to less an incident indicated that it had to make indeed the other issue in the sept is was that the motoring public was going to be left without any recovery as a result of an accident involving the carrier in this case the bits of recovered over two point four million dollars in connection with this accident and even more important is the fact that i think it somewhat lost is that it was not kirby graydon's truck that was involved in the accident it was not kirby gratings driver that was involved in the accident instead it was a truck and by stephen one hundred years and driven by steeple anderson he of course settled out with the bitterness prior to the underlying trial so it's that they have already recovered from him via a limited liability released that's the key situation that distinguishes this case from coverage that existed between those two policies and was accidental and premiums are secured that is correct your honor kirby has admitted that he was unhappy with the amount of premium being charged for the policy as a result policy on your own your argument i understand the argument about zurich not having any knowledge or reason to know that kirby was a motor carrier when he applied for insurance but you said cancelling the cancelation for lack of a better term would be a nd problematic step but i thought if you reform the policy to be a motor carrier policy georgia statutory law gave a longer period of time for cancellation to become effective is that not correct that is correct that the key difference would be that in sept that policy had not been cancelled so the court was not briefed forming the policy and undoing also applying that separate rule of continuous coverage based fund equitable principles in this case that perjury never indicated deserve that it was any type of motor carrier there was no indication it was just would be in you mr jackson you've got your five minutes remaining yes sir just quickly mr sprinkled said that in the sap case that they were a motor carrier that's that's not  the facts in that case in sap they had no motor carrier for higher authority none and they the insurer in that case issued what's been in it's a term of art a garage policy where they had put some mile radius applique limitation on the coverage under that policy what the court did was what they should do what is the insurer doing in that case it was a dump truck on the road that cost a fatality the nd step they looked at was that's the conduct how does that template against the statutes the regulations and if you're strict constructionists someone who looks at the statutes and you look at the statutory definition of for hire in what they're doing they said there are motor kerry then the court said this the ensure as open looked at an application had that van numbers for these vehicles had to wait did they know that they were insuring a motor carrier obligation operation and what the georgia supreme court said was yes to both of those questions they said as a consequence you have must have a motor carrier policy and this is the very important part that the court below and that zero is trying to skip over it is the insurers obligation to make the are look at the application in this case a dump truck a vocational vehicle was listed on there plainly a done commercial motor vehicle it used a low boy trailer to haul a bulldozer and a backhoe to these sites when they got there that dump truck also got on the road and made dumps during the course of the work there but when they had heavy hauling days kirby did what he was hired to do to remove the dirt from the site he would then gauged other motor carriers to assist him in his for hire activit particular this is you know summary judgment facts specific to this what with this particular motor carrier doing what desert snow when it looked at that application installed that other than to pick up trucks they had to dump trucks bulldozer a front end loader a trailer to get it to its site and they were actually using that dump truck on the roads that by definition of law makes them a motor carrier for hire your honor you look at the statute forty six seven dash one thousand six hundred and eighty nine you look at the regulations the definition the commercial motor vehicles in this case were on all fours then it becomes the obloquy then the insurer has to say ok this is what you're doing these are the type of vehicles you're doing that with their commercial motor vehicles you're hiring yourself out and then  that this particular ensured a sub an out work to assist him in his hauling operations and they didn't cancel the policy and in this case and that we talked about those underwriting notes produced those in this case we took depositions they represented the business these were the controlling documents it was judge may who pointed out that there were months six months after this policy was issued for a nd time that they did it but the form kate judge you have to ask you know does this policy continue in effect under motor carrier rules both federal and state under the federal rules under forty nine c f r three hundred and eighty seven if you cancel a motor carrier policy it remains in effect for thirty days under state law and it's fungible between states if you do not issue a form k to cancel a policy for a motor carrier for higher interstate that policy remains in effect until the next policy picked up and you discern correctly your honor august th fatal crash september st new policy picks up october six we exhausted and that's beside the point that we tried to get the other carrier to make sure that they were responsible what zurich's did in this case was sit on its hands and it came to trial and in and i know he mentioned mr cooper  sprinkle and mr goldman personally attended every day of that trial and were system in vor dear asking for notes all that he said out in the brief but they took us are going over your rebuttal time for a minute so if you'd like to wrap up you can go ahead and do so yes sir the public policy if it's a duck looks like a duck walks like a duck it's a duck that's what we have here and search as someone who is a in the insurance business looked at the policy application all commercial vehicles they would then have to template against the law and out of an abundance of caution even if they didn't they had all they had to do is issue a form k they did not and we have a tragic circumstance that occurs sixteen days into a thirty day plus gap between these two policies and the benton's are left in the way and what the supreme court of georgia says is that the insurers and the motor carriers will take on that risk and if they don't properly issue a form a or issue the proper policy it falls on them not innocent members of the motoring public like chase been a sixteen year old boy who  incinerated beyond recognition in this vehicle due to no fault of his own a real tragedy all right mr jackson thank you very much thank you both yes sir