by western farmers electric cooperated to perform repairs upon a cooling tower only they were supposed to prepare to perform these repairs on particular parts of the cooling policy are the j five and j six exclusions and they exclude property damage to that particular part of either the real property or the property upon which the insur coverage except for this exclusion exclusion that's the language of the exclusion was what the language of the used to exclusions j five and j six provided that the coverage for property damage to that particular part arises out of those operations which arises out of those operations upon which he is performing the work all right that's correct engine between property and real property for escape our purposes for your purposes it may not make any difference because the real property if you determine that the bolts that were being removed and being replaced the anchor bolts in this case are part of the real property and so be it and or if you consider them to be personal property or property that is not real property so be the key to this case the essence that because the language is that particular part was interpreted by the court to mean the whole that when midwest ours was performing work on removing and replacing these anchor bolts the cord interpreted that to be working on the entirety of the tower now a cooling tower contains numerous component parts a water system of piping system the truck or a get the name of the case but  compare this to the case in which you are talking about there with work being done in the foundation and the courts that in that case the the appellate court determined that the well the case that the district court in the western district had decided prior to this case was the essex insurance company versus shepherd son case and in that case there was a situation where the contractor had used fill underneath the foundation and had improperly installed that phil as a result of the foundation shifted and there was damage to the entirety of the building and in that case the judge a different case in the in the district court found a completely different result in that case the court look to other cases the six circuit case in which the court said the phrase that particular part is troubling restrictive  strains language to the point of almost off the court said to make the point that that particular part is limited to the part upon which the insured is working at the time the damag and does not in compass the entirety of the building now that position is a position that we believe is accurate because when you look at the interpretation of simply the language that is used here that particular part particular right the first point is the language of the exclusion itself in order to determine the how and the exclusion has to be applied you have to look at the exclusion and in this case when you look at that phrase that particular part it is very tripoli restrictive and does tell us that that the part is not the whole and in that case when you just look at the language itself then you must determine that particular part does not mean the whole secondly if you look at the exclusionary language when interpret in the exclusionary language courts are to use your interpretive powers as a as a scalpel and to carve away very carefully and narrowly and precisely only that part of coverage to which the language of the exclusion applies here the language of the exclusion says that particular part the language of the exclusion  not say the entirety if they wanted to rewrite the policy provision and say yes we want it to apply to all property that may be resulting in damages from the insurers work they could have said that but they didn't say that they said property damages excluded only that property damage that is a particular part that they are working upon is excluded thirdly when you look of the another point  when you look at the exclusionary language the court is not to use this interpretive powers as a sword and that and to cut with broad swaths portions of coverage to which the exclusion does not apply now that this with the court did in this case and the court did it under the business risk doctrine and this court has told us in the at least in the greystone case and other cases that the business risk doctrine is not to be an exclusion itself the exclusion defines the scope of the business risk that is excluded not the other way around but there have been courts in their court and the cases are sided by the opposition in this case for example the westside case which is a recent seventh circuit case and in that case they did decide that a hot grain bin was exploded as a result of the insured working upon a part of that and they said that that the solution in compass the entirety of the whole but did so under the court's belief that the business risk doctrine in compass the entirety rather than the particular part what is your best case what is it that supports your proposition we have you know if you had to pick one case and i would probably pick three cases i'd pick the forty case out of the the foundation of the building and this individual was a contractor and his contract was to build the entire building but the the proper improper work was performed on the foundation and they were that work on the foundation resulted in damages to the entire building and in that case the court looked at it because the lower court had said i believe that that that that exclusion in compass the entirety of the damage to the building because the foundation was connected to the walls walls were connected to the roof and therefore they said it was we work on the entire building six circuit said no and that is the language where the court said that  particular park phrase all a g is trebly restrictive and it strains to awkward necessity in the point that this is limited only to that particular part that the ensure this working upon the best example i have as you can see i've got a little unusual footwear that i'm wearing in this because i had a ladder accident when i fell off the last letter fractured my ankle and dislocated when i went to the surgeon he and and repaired my entire body he repaired and fixed the fracture to that anchor and he did not tell me or no one told me that a fracture of one part of my body was a fracture of the entire we understand that well you wanted to tell us about two more cases like you often and that's ok that's immediate the other two this the other two cases would be the mid continent versus j p l case and in that case they were dealing with waterproofing that was installed on the house and the waterproofing we can cause  damages to a good part of the rest of the property and in that case they said that particular part of the property that he was working on was not the entirety of the home he was working only upon the waterproofing and this exclusion applies only to that particular part of the property that he is working and therefore the cost of replacing the waterproofing is covered but the cost of replacing and repairing the other parts of the house the roof the the sheet subflooring those type of materials or not encompass with in the scope of this exclusion this exclusion is limited only to that particular part of the property upon which the insured is performing work that court would not use the business risk doctrine as a sword and cut away more exclusion air more of the coverage in the exclusion tells of the cutaway you give us a descript for midwest towers came out and removed all of the anchor bolts around the the cooling tower and he did that improperly what he should have done is taken out a bolt replaced the bolt and done so on down the line but he didn't do it he took out all of the bolts and that was the work that that midwest ours was contracted to do and what they were paid what they were paid to do and the policy provides that particular work that you are to that you are performing is excluded so it would be the removal and replacement of all of the anchor boats that they had been requested to do perform on behalf of western farmers clued support structure that would be affected make it safe to perform or in our opinion no because the again it's the old dame bones analogy of the ankle bone connected to the the hip bone and so on and so forth the fact that they are interconnected does not mean that the work that is being performed is on that particular part of the of the  property damage to that particular part i guess that would be the boats that they were to take out and put him replaced so it would be all of that work on the boat structures that they were performing the bolt structures or just the bowls  when i said the boat structure i meant the process of taking out the boats and putting back in the boat that was the process that they were working on that is a particular part of the work they were doing remove all and replacement of the boats that cost approximately forty six thousand dollars under the con under the agreement that they had there was a little bit of other work on some of the louvers but but approximately forty six thousand dollars for that work and that would be excluded under the coverage under the policy provision and that is the language that you have to use council yes i have a related question as you just alluded to it and looking at the the work scope of work documents in the record there is in addition to installing anchor castings also removing existing louvers and my question is whether the scope of the work  understanding between the parties as to the scope of the work is relevant to how we should apply these exclusions and you're saying well the powers of the visible and we can just look at the the base where the bolts were taken out but  work kind of went beyond the based on that and why isn't that some evidence that even under a narrow interpretation of the exclusions it's still in campuses the whole tower the scope of the work is important because  is irrelevant to how to apply the solution yes and it is because the scope of the work goes back to that particular part of the property that they are working upon the scope of work defines that particular part of the property that midwest house well let me just if i just to be clear let's say that the scope of the work involved work on three different parts of the tower but they don't we don't work on one part w exclusion only apply to the work that actually was done or would it apply to all the work that had been contracted to know that it would only apply to the work that is being performed at the time that the damage occurs and that's what it's exclusionary language says that has to be that particular part of the profit is being worked on at the time that the the incident occurs so in this case to say that midwest towers when they were working on the  analogous situations the district cork out right judge who served i couldn't agree more the judge's opinion is excellent we cited a number of reasons in our brief on top of those but i want to start with the purpose of these exclusion could i just ask kind of a  general question both sides cite a lot of cases a lot of case in your briefs lot of out of oklahoma cases is this is this issues are up for grabs in in oklahoma in other words is there any settled law oklahoma law on this issue there's no case on point in oklahoma for sure but we've argued that if oklahoma's pronouncements on insurance coverage principles govern the outcome of this case and that brings me to the purpose of these exclusions which is these exclusions are intended to exclude property damage that directly or consequentially occurs from the faulty workmanship of the insured while the work is ongoing where did you get that case yeah and judge mckay was on the panel and the court also recognize the purpose of c g l policies to your point judgments arrow is not to provide coverage in the nature of a performance bought there not to warranty the insureds work the reason i begin there is because you be hard pressed to find a better example of an insured trying to convert a c g l into a performance bond they're asking us to pay to repair their work that's what they're asking and to go back to your point about oklahoma's difference is that if you if i'm going to put a roof on a building and i want to make sure that the the scope of coverage that you folks provide and what it is precisely that you exclude from each cracked you're right it's not it's not technically being converted into a performance bond and i'm going to get to the language but i want to finish answering the john matheson's question because i'm a reader from the oklahoma case that i think is most helpful this of in the oklahoma supreme court in dodson where they were interpreting another business risk exclusion not these exclusions but it was a your work exclusion in the c g policy and that court said they said that it applied to preclude coverage and the court said non coding to hold otherwise would effectively convert the policy into a performance bond or guarantee of contractual performance and result in coverage for the repair and replacement of the insureds own faulty workmanship that pronouncement from oklahoma supreme court makes it clear i think that they would fall on the side of not construing this language to basically pay for their own faulty workmanship turning to the language itself there's too exclusions j help on what you mean in this context by business risk how does that work given our circumstances it is the business risk what's called been called the business risk exclusions are exclusions that essentially provide that policy it doesn't insure their own workmanship it's not going to pay for repairing their own work that's a business risk that they assume they can't for used the cost of what i think it was the your work exclusion which is something to the effect of once you're gone you're once you're done with the project we will not cover damage to your work itself that doesn't apply here because they were still there they were still performing operations but this is a these j five and j six are business they're called business risk is a way of describing their purpose but even if you focus on the plain language it's clear that they which you are performing operations now their entire argument is to say that the phrase that particular part always in every case requires the exclusion to be limited to the area that they're physically touching that's essential what they're saying but there's nothing in the language that says that and this is where the judges the district judges analysis was spot on the judge recognize that the nature of the work sometimes means that performing operations contemplates that the operations may encompass areas that they're not actually physically touching and the one exam in one case that we gave one of the best cases we've said a judge who serves the westside salvage case that's a seventh circuit case involving the how the hot grain bed and they were trying to reduce the temperature of the green inside then they screwed it up  exploded and the insured said aha you weren't working on the bin itself you were working on the green and the seven circuits nonsense there that they're performing operations on this green then with the green inside the fact that they're not working literally touching the green bin itself is neither here nor there our case to me is an even better example though is that was that case correctly decided yes it was yeah i splits one of the kit and that case by the way came out after our district judge opinion it came out in the summer where they said that you don't have depending on the nature of the work you don't have to literally be physically working on the part that is damaged and i ask the shop to repair certain aspects of the innards of the laptop and the shop works on it but they screw it up and when i start using the laptop it destroys the entire computer  right and so in that case at what point does operations and property have any meaning yeah i think that in that case the damage would be covered i don't think this exclusion would apply to that because the phrase that particular part of that is intended to preserve coverage of fortuity something that is unexpected and fortuitous for example in our case there are three towers that are all part of the same facility if we've been failing to brace the one tower that they're working on it tipped over and fell into one and damage the other one i think the damage the other one would probably be covered but given the nature of their work their work is on the tower itself to say that they're working only on the bolts and only the bolts would be excluded has it exactly backwards judge mckay your  question was pretty profound i thought and they said in their brief the only thing that right sorry they said but i think it's a good point and it is there they say in their brief this exclusion applies for damage to the bolts no it doesn't because the damage to the bolt wasn't incorrectly performed the bolts were correctly removed there was an incorrect work on that the only incorrectly performed work was on the failed the failure to brace the tower that's the nature of the work and the judge recognize given the nature of the come even maybe closer does the fact of disagreement among the appellate courts the reasonable jurist does the fact of the disagreement among the various authorities that we have to resolve play into the question of whether this language is ambiguous such that we should resort to that  your rules of construction it doesn't for i think three reasons number one the fact that let's assume argue i know there's a split of authority on the question because and this case that would mean that half the courts  ambiguity and half the courts found that it was covered over there was an ambiguity that the fact of the split doesn't mean that all the courts finding no ambiguity are wrong that the split of authority i've never thought i understand there are some courts that have adopted it it's never made much sense to me because it's a one way ratchet a few knots you know having courts say we think the insurers have the better interpretation they're saying there's no ambiguity what and we're saying they're right the second point though is if is if you look at oklahoma's law on this i don't think oklahoma has ever adopted that principle that a split of authority creates an ambiguity but what oklahoma law does say quoting again from datsun neither forced nor strained construction will be indulged nor will any provision be taken out of context and narrowly focused upon to create and then construe an ambiguity so as to import a favorable construction so under oklahoma a lot stronger in you've got a you've got a house where they're working on one room and it can be easily divided this case isn't and i salute portion of the divisible project their task was to brace the structure that was the whole task it's not as though they were only working on a part of the structure they were working on the whole structure by trying to brace all the cases to my mind that may be your best argument that you are saying they're there the scope of the project was to do a repair bowls but it was to push to rectify the structural issues with the tower caused by the exactly in it if you change the facts a little bit well those are things that that is a fact question though isn't it what they were hired to do know they were hired to maintain the tower and that included stabilizing it there's no question on that is there wh what would you point to in the documents that support that position is unit rather than just saying i'd like to i'd like to see in the documents where the arrangements were made for this war that stabilizing the tower but there'd there duty was to maintain the tower as a whole but that isn't what that says well that was part of it that was what part of the well then what's the rest of it i mean this this is important for your to maintain their well their task with it and we'll look at the record if i can just make one more quick point there ever there we cited five cases in it side from west side salvage where insurers were tasked with raising houses and in those cases the courts always recognised that you're working on the house as a whole when you're raising whether you're raising interest stabilizing it you're working on the structure as a whole thank you are we did the parties or the court ever discuss certifying the case them like to have sort of asian much but did you consider having i mean i obviously don't look have to consult my client i don't i don't i don't i'm sorry i don't i don't know