final case this morning is the traveler's indemnity company versus began in chester and robert  today is the question of whether under and under insured motorists policy an individual who does not otherwise meet the put the promise of the utica mutual case as laid out by the pennsylvania supreme court can still be determined to al approach here that says essentially as i as i understand it that as long as an individual is in the course and scope of their employment their vehicle related employment me that the truck driver an ambulance driver those those individual who is clearly in the scope of employment clearly doing something that was in trouble to their job at the time of the injury and yet the courts hold you're not occupying the vehicle because they apply the you could asked if i did it wasn't vehicle oriented parallel or a substitute test as a court so holds here for instance and when out of this court in two thousand and seven the district court in that case did find the person to be in the scope of course of their employment and they did hold  how do you how do you distinguish our case this case from limb from our decision factually fashionably i mean i think all these cases in which someone in the course of their employment is determined to be occupying a vehicle i as and under insured motorist is the tow truck not the flatbed truck that was the court's ruling correct but both both vehicles were insured on the policy in fact in the in the opening the opening of the opinion it says we need we need the court says we need to find only that he was occupy right right truck to you so he called back to his his employment and they sent out of another driver to the factory means does it not that that our court you know non presidential case seems to have have pokers on the course of employment disagree with lynne which unlike what i just told prior counsel we are perfectly able to do if we so choose because if not if it's not an opinion of the court it's just an opinion of the powell press i think i do think when that particular was wrongly incident and always in the other cases what seems to be a decision characteristic is that the if the individual who is ultimately found to be occupying the work vehicle is doing something to the actual vehicle  focus the notion of the term occupying in a broad mash which i this is the call to what you're suggesting but the second thing and probably more important thing i'd like you respond to is it seems that you has that you create for us or the line that you would draw as my meds proximity so if i'm fifty feet away from the car but i'm on the phone conducting business that's a situation that in your view is distinct from if i was talking to my wife but i was  says an individual has to be vehicle oriented they also have to be doing some transaction that central to the use of the vehicle and might not be close to the vehicle and doing work related to the purpose of the vehicle absolutely and i think with the exception of lint which again i think can be made consistent if they had focused on the flat bed truck but the other cases the people who are found to be occupying the vehicles in their employment are doing something facts but the call was to aaa because the vehicle i been driving is no longer functional i'm feel way everything else has to say what's the result the worst thing that could happen if you ask iran or someone says no before i began i would like to apologize to the court for some of the matters within my brief on numerous occasions when rereading my brief i saw that i spelt th e causal as casual and as such i would like the court to note that it had this surely at one point in time on line sixteen or page sixteen line nineteen i referred to exciting versus accident  employment issue being raised by counsel in this matter is a red herring to this entire matter these cases that the council seems to indicate are supported only because they are in the course of an employment is wrong lee reason the matter is to write this case to write the cases in the third circuit throughout the land throughout the bank district court case and bench coffee and throughout the stony king case out of the eastern district the court has made a specific investigation as to the specific use of the vehicle and an individual's reasoning for being outside of the vehicle in relation to the vehicle it is not because he is in the course of his employment bench off did not indicate that he was in the course of his employment indicated strictly that he was outside of the car specifically to get directions to nor to continue so this idea of being in employment is in incorrect it is specific investigation by each court as the reason why the individual is involved outside of the vehicle and if that being outside of the vehicle is a volved in the central transaction of that specific vehicle  is normally associated with the immediate use your right of that auto individual auto not auto in general your honor but that particular audit ok and that is why counsel tries to link all goal to be outside of the vehicle in part as part of the operation of that vehicle the tow truck driver the garbage truck driver of the all of the polls here how this relates to the language that i've list it's already on have left that's why they hit shows up but then as part and parcel of that particular job relating to that specific truck he was to get out and verify the vent number on that vehicle because this car he was to drive around and get out of the truck and make his readings mean it's it wasn't but there was no heating are in the truck it's hard to argue that it was feasible for carty to do his job without driving around the runway with a truck with a yellow light on top and and similarly it's  honor because the curry going out and doing the readings ok do not relate says specific use of the vehicle and the reason if you look at benchtop bench process hey look we look at why he is outside of the vehicle is he on side of the vehicle because of the specific use related to the vehicle yes he has to check the vent numbers not only that he has to make sure that the guy who's doing the actual booting is not run over or injured by the driver his vehicles are right next to this vehicle and it also looks as does he have if you look at back at the unica is the severed all relationship with the vehicle know the vehicle is there this is a temporary stop same with curry get around those two don't you i believe your honor it looks out is he the orient it or is he highway or he has he severed all of his particular activities with the vehicle if there's a tile or case it's very fact specific on all of these cases rather it's not like a broad rule you have to look at the facts specifically in this particular case lance vehicle is parked in a travel portion of murray avenue on squirrel hill it is blocking traffic and is there specifically for a time period of from forty five seconds to five minutes was testified to by the driver we get in the line and up we verify we throw it on we get out of there because they trying to avoid quite frankly any confrontation with a the drivers are going to vote so it's a bang bang operation so what they do is are they vehicle or yeah they're right there they're blocking traffic and the idea is get in get out and it's the same thing as with spoken about in terms of why is he out of the vehicle he's out of the vehicle to verify what is his intent his intent the is to get back into the vehicle and leave again with the verification all that is perfectly correct but i think this is a big but  the vehicle orientation i thought under the youth health was in order to enter use or exit the vehicle and as you just described you're saying that he's he's checking relating to duties relating to the truck ok that's where i think it has to because it's the truck not necessarily the duties of employment but the duties associated with the truck the duties associated tow truck and the other was calling his office from the same position to acquire it out over time then you would say he's not i would have a hard time arguing that point on his behalf at this point in time because of fog in detour as to the activities related to that specific truck and his duties related to that specific truck ok i mean everything here the factual basis in this case is agreed upon all of the facts point to the situation where all of the activities he did were essential to the use of this truck that he had to drive around pittsburgh for the purposes of booting scofflaw they had a scanner to see if cars were on the list the computer was updated every morning the plaintiff's job was to verify the plate number and the amount he still fix a sticker to the paper to the window of the car so that they were in the car and then there to do get back in the car and take off accident the vehicle to protect the buddha so the duties of the tow truck driver requires him to get out of the vehicle to hook up the vehicles for a tub and so there's a straight analogy between the cases here in the western district eastern district and in the third circuit although i agree that lynn is not preferable precedential it does go through and discuss the same individual determination made on each individual facts as well as to the specific broadcast is why or you see out of the car and is it related to the use of the motor vehicle and these are really what we're arguing about here because one rolls over to the other vehicle orientation was over into the use of the vehicle  colleagues were trial judges a lot longer than i was you get cross motions and then you realize that you need to have some discovery and why why isn't this a case that and wanted of all that we've been discussing here would it be good to get a nice detail factual record so we know exactly what we're doing with judge i believe the facts more were well developed here we took depositions in this matter and the factual matters involved here are and this and we do i don't believe we need any other facts on the determination here john i mean we i that we developed the facts of fishing for the court to make ruling apply the law and apply the tests that were  agreeing to disagree with mr goodrich about whether the trial for the factual development or trials required here i would agree with mr goodrich i think the facts are are are well developed and i i i really think the only relevant facts are what was in this course of his employment clearly he was doing something essential to his employment we do not think he was oriented towards the vehicle at all and more strong of an argument i think is it with him not being so the vehicle that was essential to  agree with you on this point the hypothetical i posed was if he was doing what he was doing in the facts here he'd be covered but if he was hauling back to the home office inquiring about overtime he would not be covered in that would you agree with that conclusion as well i mean obviously you don't agree with the first one i get that but makes  no yeah i would i would agree but i think probably for different reasons i mean he draws a line apparently between what they're talking about a phone but i draw the line way before is that good summary his connection with the truck at that point using that telephone has nothing to came to the conclusion that yes these people are all of the you can you can argue about this and i i i tend to agree that these people were in this course of their employment on any decent employee would do with those employees didn't think of that they simply were