the more your honour's going to have made me please the court james i would like to reserve three minutes position that the trial court heard in ratifying the actions of nationwide in this case therefore we respectfully request that the decision of the trial court be reversed in the matter be remanded for trial on the merits ok let me interrupt original complaint was not played sufficiently to set forth the residency in citizenship for purposes of diversity jurisdiction that issue was then raised by the court in a letter to the parties and in that letter we address the issue and we respectfully requested the opportunity to file an amended complaint to correct that the procedural deficiency will right i understand stood that both parties pursuant to twenty it's considered to be no proton taking care of and we've got yours diction and we're moving forward thank your honor ok thanks becomes you also moved for certification but  you haven't cited just despite your assertion that this is the provision that is uniform throughout these types of policies and therefore would be a widespread issue be it be certified but there is no other there is no other law on this issue will are there when you say there's no no law on  the isn't there a block the blood versus old guard insurance case where there's a citation with approval to our courts previous decision  in the i'm not sure i'm saying this right that the race disagree yeah case well the those those cases your honor are really the propriety of elections or rejections which is different than this case in this matter and in those cases the courts are looking  was there a proper rejection of coverage was there a proper lection of lower d limits of coverage but in the course of making those decisions they speak of in the meaning of the pennsylvania statute which is directly to shoot here don't they yes ok and in fact in the rest of the case we said section seven hundred and thirty one is a simple statement whose plain meaning is apparent from its language of van bates and an insurance company cannot issue a policy in the commonwealth of pennsylvania unless it provides insurer may not into a policy in pennsylvania that provides liability coverage for motor vehicle that does not also provide uninsured under insured motorist coverage which is co extensive exclusion raised in the letter from the court gallagher which was a household exclusion those are exclusions to coverage here we have a situation where this is not an exclusion of coverage this is a failure to comply with the statutory mandate  it's putting a label on it that may be helpful for your client but in effect it achieves the same result right it's there's liability that is that has been provided under the policy and with regard to cars owned by phoenix it is co extensive yes it is you are right so if if if that's so then how do we why why isn't coverage is not premised upon ownership your honor the section seven hundred and thirty one dollars says no policy shall be issued in the commonwealth of pennsylvania unless uninsured in the nurture motors coverage is provided is offered or so the onus is upon the ensure her ownership is a red herring that nationwide is trying to raise and are trying to say we shouldn't have to be required to pay for coverage for vehicles we don't own but that's exactly what they're doing they're providing liability coverage for any or all of us but what under the law says that the should provide coverage for vehicles they don't there is nothing more that says that that's what they did that's what commercial policies commonly do commercial policies are written in such a way that a personal auto policy can identify all of the ickle said earlier question is what in the law mandates your interpretation they have an interpretation you have an interpretation responsibility d lawyer says no policy may be issued unless uninsured and under insured motorist coverage is provided for the vehicles so they insured they issued a policy and they insure for liability coverage any auto which is common under these policies because that means any person driving any employee driving a car in the course and scope gets liability coverage and the financial responsibility law says if you insure a vehicle and you provide liability coverage you must also provide un when you i am coverage unless there is a rejection or the law says that and there is no requirement of ownership the requirement is ready if you ensure it ready you must insure for uninsured and under insured commercial policies commonly insure vehicles that are not owned they are higher all those indorsements are borrowed orders indorsements that's common in these situations so that my question to you is is that a de fact of coverage for a certain class of vehicles i'm not saying they big can't do that they can do it if they had a waiver that says a waiver that comports with the financial responsibility d law says here's a waiver coverage and then they if they endorse the policy and the policy is indorsed and says however we do provide coverage for such and such do you agree that they can do it by exclusion and if not why is this carve out different  say it's not an exclusion it's really a waiver of coverage if this is viewed as an exclusion that it must be viewed in terms of the mandate of financial responsibility on them the financial responsibility d of all says if you provide liability coverage you policy why can't they do it here is that it was in your honour's really not an exclusion it's not an exclusion it's a waiver of coverage it's not saying that we are excluding a certain a certain action we're we're network scooting if you're driving this vehicle and you don't have permission what they're saying is we are not providing any coverage the same way you can say that an election of zero is a rejection that's not true a and exclusion of all coverage is not an exclusion it's a coverage is and then phoenixville signs the agreement why isn't that the equivalent of whining such that they were duction to you i am for certain category of cars permissible phoenix because  pill agrees the pennsylvania courts have said that defective waivers can't be viewed as effective elections there are cases that specifically say we're someone said they had an election and they said we  want we don't want to provide any coverage we just want to provide the minimum statutory requirement and the court said that's invalid rejection and you tried to reject and that's no good and we're not going to say that's it is our largest that you're citing to us right there is there an agreement by the insurance or is that an instance when the insured refused to sign because my question to you is what what how should we look at the fact that phoenixville as notice of the be zero two's symbol and then a likes to sign on it's it knows the extent of the coverage and essentially it knows that there's a reduction in coverage and it's agreed to that that makes common sense your honor if that's not the financial responsibility law that's not what the pennsylvania legislature issued when they when they enacted the fun interest possibility law financial responsibility paul says word or to waive coverage you have to have this rejection intent doesn't matter you have to have this form and have to be a knowing and voluntary waiver bottom line is your position has you can't a fact this change through the policy statement consistent with you can't affect this by language in the policy it has to comport with the statutory rules for waiver  good morning your honor bradley bates i represent nationwide mutual insurance company you have got a bit of a raspy voice you are will have to forgive me i put my daughter on a plane to study to italy this morning she left me with her cold for your daughter leaving that behind it looks like this statement is as it as describes what is and isn't covered that symbol one means any auto audio and there doesn't seem to be any dispute that mr slips he was using this in the course of his employment he wasn't off on some frolic and detour what and what is the basis added non mandated liability coverage which is what happened here that seven hundred and thirty one attached to it a commensurate obligation that nationwide offer or provide underage would motor is cover on when you say it's never been there before may never been litigated before but the assertion is being made to us that this is not an uncommon kind of policies that inaccurate it is an accurate statement that this is not an uncommon type of policy to phoenix bill and it didn't say we're covering any auto any auto or liability yet and whether it's covered by somebody else or not is irrelevant we're covering any honored that an employee is driving in the course of employment and you big knowledge that he was driving in the course of point and your big knowledge that that's what the liability coverage by nation needs indeed so i'm trying to follow your logic if seven think thirty one says what we said it to me and we said it means if you've covered something for liability you will cover it for you i am you i am coverage at the same level absent  if you acknowledge is indeed you must that you covered it for any on home and that was the liability coverage either we were wrong and resolutely or they're something we're not seeing or i'm not c n n they gives you an out what's your out covered any auto what is what are the words any auto mean if not any auto that's being driven in the course of employment whether it's own or not any auto for liability purpose we don't have an exclusion the statutorily prescribed statement of required financial responsibility in the commonwealth of pennsylvania it says owners must insure vehicles which they own put it that's what the name doesn't limit or cross reference seventy six dollars it doesn't limit it to ones that are own or even that's where there's mandated liability coverage its terms include both mandated and non mandated no motor vehicle liability insurance policy there is not a single reported case in the commonwealth of pennsylvania or rd circuit appellate decision which has held that when an employer aleck's to obtain liability coverage which is not required by the statute the liability coverage on any vehicle is not statutorily mandated so where you've been you've just been asked where in the statute does it say and this only covers liability this only means deploy the liability coverage that's required i'm speaking near your honor respect we to interpretation of the statute there is not a single case that is held that under policy you issued the policy we issued the policy on the two employer owned vehicles now you issued a policy that covered any auto that's why i started with that very language because it's in the coverage it's in the form that nationwide issued i mean that's indisputable isn't it indisputable as to liability coverage that is correct ok question you mentioned seven hundred and eighty six f it's not in your having is with the notion of coextensive this right so the liability auto d you i am supposed to be coextensive it's clearly not that's what the statute calls fo what is it in the statute that allows you to draw the distinction that you've drawn here between the coverage you're providing and your auto liability on the one hand and you i am on the other so your honor we did argue extensively that the act does not require that you y m coverage be extended to employees who are not occupying employer own vehicles and that speaks directly to seven hundred and eighty six pronouncement that in the commonwealth you need only provide financial responsibility mandated financial responsibility to vehicles which you own so although we did not specifically cite to section seven hundred and eighty six  employees occupying non employer own vehicles for you i am there is no dept there is no statutory definition of in short for commercial auto policies so mr slutsky does not meet that definition here's the question what is th distinction between you i am on the one hand and auto liability on the other if i understand your honest question correctly i would answer by saying this as respects the coverage is required by the statue b it doesn't your on ok when the texas statute doesn't include it why would we read into it because every appellate decision interpret ng in implying seven hundred and thirty one dollars has addressed only one set of facts that aren't present before the  court and if every case that it's gone or didn't have the as factual wrinkle in it what difference does that make we're looking at the statute what in the statute or anything else that you put before sr brief would tell us to read into the statute a limitation which by its terms is not their policies are only required to be issued to cover required financial responsibility is policy issued in relation to the required financial responsibility you're correct seven hundred and thirty one dollars does not distinguish in the terms of the statutory provision between the liability coverage you are statutory remain dated to rip obtain and additional liability coverage that there  choosing not to provide an injury motorist coverage coextensive with the liability coverage there are obtaining the required rejection form i think i would answer this question this way your hon i can't i don't have a specific answer as to why this issue has never been litigated before other than to say i believe the clear mandate of seven one hundred and thirty one dollars does not reach the additional liability coverage procured by phoenix buil i suspect that there are as mr haggerty says it stated hundreds if not thousands of policies out there commercial water policies written exactly the way the nationwide policy is written the similar issues have come up before the yoakum cases one of them whereby an insurer can purchase coverage for a limited class of individuals and rejected for others one thousand seven hundred and thirty four does not provide a procedure whereby absent a valid rejection he sure can opt for coverage for a limited class of individual eighty distinguishable from the facts in the present case in your gum the employer with the employee was actually occupying one of the employer own vehicles as such the employee was a statutorily defined insured for under insured motorist coverage and he was also insured under the policy until the carrier until the carrier tried to carve him out when they tried to carve him out they created a two tiered system of coverage which we do not have  coverage what the distinction with yoko is no one officer or director or employee in this slutsky situation is covered for you i am unless occupying one of the two employer own vehicles or attempts within within an insurance policy to narrow the definition of insured are rejected as a matter of the text of the of the of of the statute as well as has been your public policy every one of those cases your honor that you just mentioned deals with statutorily mandated coverage this case does not so you are required to provide statutorily mandated liability on the vehicles that you own and in that situation the carrier must also provide or offer you i am phoenixville was not required to provide the liability coverage for the vehicle which mr slutsky was occupying i respectfully submit those cases when jordan brought to attention a particular case i wonder if your view on certification remains the same or if you change your view your honor nationwide view on certification remains as stated in our letter brief requested by the court we do not think this case is appropriate for certification of penciling the supreme court ok thanks very much mr vance appreciate your  honor's unless the court has any questions i don't believe there's anything more i need to add i just would respectfully request that the decision of the trout would be reversed in the matter be remanded for further proceedings ok thank you mr have you got the matter under advisement