case time permitting i will explain that it does not apply st because a t m hanson admittedly were independent contractors to mcneil is therefore by definition their transport of the garbage truck was not subject to mcnelis as control which is a factor that both westfield and the district court correctly recognize as a critical factor for application of the exclusion exclusion also does not apply because eighty was hired only to provide transportation services not to perform any business activity specified in the exclusion as it is written now the importance of the garage repair facility having control over the driver at the time of the accident is reflected in the cases that we've cited throughout the brief that it considered somewhere exclusions in those cases generally fall into two categories depending on the nature of the relationship and entering the existence or the absence of control the st category of cases are those where the person driving the vehicle is employed by or they're an agent of the repair facility that is you have a relationship where the driver is clearly subject to that facilities control and therefore it's easy to find that when they're driving that vehicle they are doing so while working in a business of selling servicing or repair such that the explosion w apply now courts have also extended this an exclusion to apply when vehicles are being driven to or from a garage before or after being serviced for example returning a vehicle to a customer with the courts explaining that driving that situation still may be necessary and necessary part of the repair business in other words the courts of recognize that the servicing does not just in tail you know when someone has a tools and and there under the hood of a vehicle but it may extend to returning that vehicle but when you look at the cases that establish that necessary into the language that the western versus great central case the humble oil case in interview united fire case out of missouri they still involve employees or agents of a garage or a repair facility they still involve someone who is driving in connection with the work that they do for the garage itself none of those cases have held that simply because driving or transporting a vehicle might be necessary or might be beneficial to a business that it is done while in that business regardless of who is doing the driving or regardless of whether the driver is actually doing so subject to control of any of the listed businesses and that limitation on those those line of cases i think is recognized by the western district court of virginia the national liability case that we discussed in aren't serials you also see these concepts come together in the colombian surance versus baker case that the th circuit court  issued some years ago and in that case the court was asked to consider two exclusions which excluded coverage for persons using a vehicle while either in gauged in or working in a business of service or repair and the if circuit court like others seem to interpret these two exclusions similarly and the court found that they apply when an individual is engaged in the business of repairing autos or individuals who have undertaken to repair an auto for hire and so the court ultimately found that both the engaged in and the working and exclusions applied in and doing so the court considered such things as baker was by trade someone who repaired autos he was hired to repair an auto he provided a repair estimate he'd started to perform a peer services and he was actually driving from one location to another in order to finish repairing that vehicle and so the court found both exclusions applied and found that him driving the vehicle was a necessary part of the repair services that bigger himself was to perform when you look at those backers of the court considered and baker they simply don't exist here with respect to a t m hanson here you have mcneill us and mcneil its employees who arguably serviced this vehicle by up getting it converting it into a garbage truck and instead of make me less having human neela's employee or mcneill us agent then drive the truck from minnesota to ohio it decided to hire a rd party independent contractor that is eighty and this brings us to the  be done by an independent contractor that is by someone who is not subject to their control that is someone who is not subject to a garage repair facilities control in the nd category what and thirty two i believe often is is cited to explain these provisions and the intention is when they go roger repair facility takes control of the vehicle the thought is that that garage its insurance company should generally be responsible should something happen as opposed to the vehicle arson sure and here mcneil is did have control over this vehicle up until the point that it handed the vehicle over t eighty an independent contractor and so the line of cases or the cases that we're talking or briefs where you have a motor carrier being hired or sometimes it's a towing company being hired what the explained is if you hire a company to only transport or sometimes to only tell a vehicle and towing or transporting or delivering is not among the businesses that are listed in the exclusion then the exclusion does not apply now in owners insurers certainly may want to exclude coverage when it be a goal is being transported or because certainly the owner doesn't have much control in that situation and the insurer can exclude coverage they just have to specify those businesses within its exclusion it's simply a situation where insurers including w field are bound by the language they choose to include in a policy and language which they choose to omit and they can expect the court to broadly interpret and exclude to expose to explode coverage to businesses that are listed exclusions of course have to be interpreted narrowly and strictly and so when we look at those two categories and look at this case mcneil us was hired excusing the hired eighty simply to transport the truck from minnesota to ohio eighteen hanson were not involved at all in preparing or servicing or updating this truck at all and westfield concedes that eighty was the independent contractor even if it didn't that agreement provides the agreement also specifically says that mcneil was not to have any control over eighty's transportation services now in its brief westfield directs the court other provisions of the agreement but when you look at what they direct you to essentially they are either provisions talking about preconditions to transport for example you need to have certain insurance or you need to accept the job within so many days or they point to provisions that essentially are intended to make sure that the product gets to the customer in a clean undamaged acceptable condition there's nothing there that really talks about me you know is controlling the means or the method of transportation instead as the district court did correctly recognize other than instructing where to deliver this truck mcnelis really had no further involvement instead it was eighty that provided he answered with the bill of lading twice a day to report his location and any issues eighty drivers including hanson on the other hand were prohibited from contacting mcneil as for any reason those undisputed facts that are very that are if you're working in or if you're if you're not you don't think performing an essential function in the sales process would be enough to consider someone working in a business of selling regardless of control no i think if they're performing essential function and they are doing so as an employer in age interests or or subject to the control of of that business they certainly would be but i mean once you have found something over to an independent contractor i mean by the very nature you don't have any control and i know it's why i ask you why control is the relevant thing it control is not a word in the policy well it goes to the the very purpose of these exclusions again the purpose of the exclusion is recognizing that generally the owner's policies will provide brought on under this coverage so they will say as long as you're you know operating the vehicle subject to the owners control generally that owners insure has to provide coverage in these explosions were written into the policy recognizing their situations where the owner when they handed over their their vehicles handed over to the raj they no longer have control over who provide coverage under under the omnibus provision because you don't have the necessary control and what you have here is eighty simply transporting this truck in the business of eighty which is only to transport and responsible for reimbursing caroline a casualty of the amount that remains on their underlying policy but then there would still be some amount due beyond that as well reserve i'm sorry you may reserve the balance thank you for your argument mr ali we'll hear from you it please the court michael reli representing appellee westfield insurance company your honor i think you asked the question that gets right to the heart of the matter why does control matter in this interpretation of an exclusion as as this language is written in westfields policy and i don't think that it does and i don't think that the cases require it i don't think lobby of the baker analyzes it that way i don't think the minnesota supreme court in the is it that way i don't think the grisham case from arizona which actually i think is the closest factually at all to embodying what this case has and it doesn't require that the columbia v baker case talked of the person driving the vehicle about whether was necessary and expected in their business the when the wallace case talked about whether the person driving the vehicle was engaged or operating in a business the policy itself just has the language of working while working in a business of selling service in a repairing auto that exclusion is broader than the cases that ms nevadan he cites in to the two types of cases that she cites one is the type that has a described definition for business or automobile business quote unquote and then you go to the definition section and you look and see what it's defined is those cases are very specific and they say ok the insurance company if you wanted to find these particular acts or or roles that a driver or user of the auto is performing then we're going to hold you to that because you've you're defining these the nd type of case is the one they they define the case is used in a business that's not this language used in a business is basically is it you know essentially a tool or an instrumentality to operate that business and we don't have that here we have a broader exclusion that just talks about working in a business of selling service in a riparian auto and so you know the st is working in a business was eighty working in a business and we believe that the facts show that they were working within mcneil this is business they had signed a contract to perform a service that both in the recycles and in the deposition of kerry nay who is mcneil  his representative said that that was a necessary operation for mcneil is to transport the finished vehicle between its two locations within its own business and so that they have is you know we think very clear that mcneill this had a need to transport the vehicle that it hired an outside company to perform that service within its business and mcneil as believes that it is a service for them because it it moves the vehicle closer to its customer in this case rocky for rocky to actually get the vehicle the finished vehicle we believe that the you know the cases use different language we have necessary an expected integral and necessary i think the common word is necessary i think that these cases that do find that this language and i'm really not hearing carolina casualty argue that the westfield language is ambiguous i just think that they argue that the their interpretation of the facts don't fit the policy language so if we start from that that the language is not in big us and therefore the language gets it's plain in ordinary meaning that the cases of this court in baker have properly put the working in a business in context of facts of somebody moving in a vehicle either for their own business or st somebody else's business and i just don't think that this requires an employer employee relationship and i don't think that independent contractor is the relevant inquiry here st of all somebody being an independent contractor and working in a business or being even an agent of somebody are not mutually exclusive concepts somebody can be an basically states exactly that in terms of analyzing differences between independent contractors and agents and certainly the restatement rd of agency does the same thing i think really what's important is that make neela's has a service that it wants to provide it hires a teacher execute that service to engage in that service mcnelis is behalf and you know the vaster driveway service agreement is exactly that service agreement and you know the the level of control i don't just don't think is relevant yes there are many many requirements in that service contract you know  eighty has to abide by the federal motor carrier safety administration and d o t rating they have to strictly comply with all federal and state highway laws they have one hundred percent on time delivery  yes looking at the language of the exclusion it says someone using a covered on a well he or she is working in a business would you agree that he or she there has on the driver right i don't know that i necessarily agree that it's he or she would certainly hanson was the one says equate driving the vehicle of course there is a person who drives the vehicle ha believe in all intents and purposes here is clothed with responsibility and an authority to act on behalf of eighty in this situation let's assume that reasonable not in the business of service selling service and repairing what's wrong with that reading your honor i st of all the exclusion does not necessarily limited to having to define transportation so i think and an interpretation of what mr hanson does for a team is provide haiti a service he is moving a vehicle that is part of eight contract service that they are providing mcnelis but he's always business is not selling repairing or servicing autos it's transport well your honor i believe that the if you if if you look at the language that baker analyzes you know look at the language that the went case in minnesota analyzes i don't know that it's necessarily that the courts have said that transportation is not a service i think it can be a service your honor it provides a a i want to get this language here it is still meant of a business arrangement which is the what the web case  analyzes and i believe that that is kept certainly satisfy are a requirement that there are part of the exclusion in which it is servicing the auto because mr hanson is performing that function for eighty in which eighty has put itself out there in the world for and specifically for mcne as a service that it is providing so do we have services nested here i would argue yes we do and therefore i believe yes your honor when you say nesting in other words i gather you're saying eighty can be in the business of transporting vehicles but also at the same time be working in the business of selling and servicing vehicles because it's performing an integral service for mcne agreement is the way that one is necessarily integrated with the other for what nick needless wants to do with its business i mean it you know the  question would be if mr hanssen was directly hired by mcneil as to drive this truck would this be still within the ambit of this exclusion and i would argue yes it would be because mr hanssen would be providing a service that that  mcneil us believes is necessary and integral to the service that it is providing to its customer and so that is you know i believe that that is what that's the way i use the term nested because mr hanssen was not directly hired by mcneil list but he is part of the company eighty that was hired by mcneil us and i believe transportation is a service that is provided and expected to be provided by both eighty and hansen for this garbage truck to get to ohio to be delivered to the customer so you know i believe that you know i believe that the court in in arizona addressed a case that is you know basically on all fours in this case and analyze situation of whether working in requires an employer employee or an agency you know and whether that matters for the business and how the driver being employed by the upset or entity performs the service provides the necessary and integral service for that company and how that then dovetails with what the court determined was in on a big s policy so you know we would ask the court to you know up hold and decide again that the westfield exclusion is effective and that westfield does not have any responsibility to indemnify and actually if miss nevada is going to address the priority umbrella claim i guess i would like the chance to respond to that i don't know that i want to pre stage her arguments it all right thank you your honor you know very quickly i think that st of all we believe that there is no ambiguity in the priority section of the westfield policy in the other insurance section we do believe that they can select because they both refer to other insurance we believe that the westfield language referring to any of the other insurance has to refer to other insurance that are outside of the ambit of what the  umbrella policy covers because the umbrella policy specifically defines and uses in other parts of the policy it defined term of underlying insurance which specifies the coverage that the umbrella policy has over and therefore the  any of the other insurance without it despite what carolina casually wants you to do which is read in the defined term of underlying insurance into that section it's not there that defined term doesn't apply there is a conflict in the law and therefore you have to we believe analyze which is which policies either close as to the risk or under the told policy insuring a ten intent which policy that has priority and we believe under both of those analytical structures that the carolina casually policy better contemplates the risk it's a specific drive away contractor's indorsement that it the premiums are directly related to that risk and westfield's umbrella policy is you know i'm not contemplating their risk it is over and above all the different forms of insurance policies that are underlying the umbrella policy and not merely you know worldwide its brokerage action here in this case in obtaining the garbage truck for rocky don't see it's not in your brief and when i left a big case the page number that you gave it came up with apple leavers is key lani oil company so maybe you can try again on that one yes your honor i will do so you may proceed you're down to twenty three seconds why don't we put the clock in one minute so you can at least give us a coherent thought going thank you well let's build argument to the court now that control is irrelevant i think it's important to important again it goes back to the purpose of these exclusions including as the minnesota court recognized long ago in the went vs wallace case it's about control being transferred from the owner to the grudge when the garage has control it's responsible we don't that here and i think the argument that westfield making that you know eight he was providing a service to mcneil us all agreed that they're providing a service that's not what they're exclusions says it is whether you are