density may please the court my name is joshua bell and i represent the appellant in this case on the evening of december fourteenth two thousand and thirteen morning of two thousand of december fifteenth over seven hundred thousand dollars of  goods were stolen from the facilities in which my client kept their merchandise at the time of the loss there was an insurance policy in place that insured these good at the time of the loss the as a result of a theft theft was covered under the policy of insurance and at the time of the loss the loss location eighteen zero one northwest one hundred thirty fifth avenue miami florida was covered as an insured location notwithstanding that the district court found that because these goods were contained in a storage facility which was not part of the brick and mortar warehouse at this location that the warehouse coverage did not apply in so doing the court  well well it was it was a it was a trailer there was no cab attached to it was it was it was procured specifically because they were moving items back and forth between the physical warehouse and this other facility because there was construction going on but whether it was aware of the house or not is really one of the primary issues and the reason that it's an issue is because for two reasons one the policy chose not to define warehouse but that per se doesn't answer the question but what we can do is we can look at judge at the district  definition her own definitions when she correctly says that when we have insurance term that's not defined we look at dictionary definitions so let's look at dictionary definitions and let's look at the dictionary definition one of two that the district court cited in her opinion and the one that i will focus on that she quoted was a structure or room for the storage of merchandise or commodities that's mirriam webster definition so we're house by that definition does not need to be a brick and mortar location it can be any type of structure or room that stores merchandise that's exactly what what this was at the time of the theft so for the district court to determine as a matter of law in essence it's not a room we can we agree on that correct it's not a room  so under your dictionary it's got to be a structure correct so this trailer or however you wanted to if you would say is the as it rolling down the street look at that pulling his proctor well one wouldn't that not at the time that it is that it has been stolen and remember what happened here why is it only a structure when stationary yes but when it's moving correct but and it was and it were and just in terms of the context of how this took place at the as it was constructed and utilized at laptop's premises there was no cap attached to it and there were metal stanchions that were placed in in the ground which is a potted sorry you're saying you read in the definition but you leaving out the part of the definition that it's for the storage of merchandise that means that it was it was a structure built for the merchandise at that out of the way you're using it if one took an open lead to an open like of or a tent a tent out in the woods and one put the merchandise in it according to the way you use it that's a warehouse because it's b because the structure that's being used by the user for the storage of merchandise well that would be that would kind of destroy the integrity of the meaning of warehouse because the tent in the woods isn't built for the storage of merchandise it isn't designed for the storage of merchandise and neither is a tree so to transport merchandise so in any construct we have to look at all the circumstances and what would be the reasonable expectation of the insured in this type of a situation here what you had the and the facts here under steward you're saying believe that this was a warehouse or that this very temporary purpose yes because what was going on and this is undisputed is what they were doing is they were rebuilding the permanent warehouse and because they didn't have room to store everything they went early took this other storage facility ok it was it was it a budded the warehouse they were moving items back and forth and back and forth during the day and at night because they didn't finish they shut the bay doors they shut this they shut this facility so during that period of time your honor yes i would i would contend that in fact there was they were using it as a storage facility for their merchandise disputable but what's that got to do with what we're talking about in that they are you saying that there was testimony in the record that they said to themselves wait a minute we're only allowed we're only covered by insurance if the goods are in a warehouse is a true or a warehouse yes it's a warehouse because we're using it for the storage of merchandise well certainly not to that extent of course not but did they believe that their goods were that there and that these goods were all of a sudden we're unsure bowl after were uninsured after they had procured never thought of the question the question didn't occur to them as they had increased their security to twenty four seven security at the time that this was going but that doesn't define whether or not it's covered by the policy i just want to take a moment to go back to the issue of the warranty because it was not addressed in the district court has been addressed in our briefs and there's a just a two step process the court would need to go through once if the court determined that there was an issue of fact as it relates to whether this was a warehouse then you get to the issue of whether there was a warranty that was violated so the first question you have to ask is whether this was a marine policy or and on marine policy or whether the marine policy can be severed we showed give given you that analysis in our brief in showing you case law that shows how courts depending on the nature of the risk can sever non marine from marine risks the significance of that is with respect to warranty is if it's a marine loss with a warranty is strictly enforced it does not matter the materiality of the warranty if in fact this is considered a non rein risk because we're talking about a warehouse and we've cited you cases that have taken that similar approach then you have to go to the new to new york law and there has to be a material aspect of the of the violation of the warranty so that you would have to answer the question whether as given the nature of this loss and remember there was not a break in to the  two to the storage facility was rather hooked up by cab that they that some that they stole from another facility and then dragged out whether if there was a alarm in place whether that would have increased the likelihood of it being of the thieves being caught or not given the fact that there was not a central station inside of that because the and the burton as we've cited in the n g case the burden is on the carrier to determine to establish that the that the materiality of the warranty so there's a separate there's several step process that one has to go through it's not as simple as saying did you have was that what was that was that was this location did it have fire or did it have burglary and of and of discussion it's not the end of discussion it just sets forth a series level a series of additional court would like to hear other was what i would like to do is jump directly to three points raised by laptop plaza counsel and address them directly thank you in reverse order counsel's arguing that the warranties must material impact the risk here and he is relying essentially on state law and what he is overlooking is the fact that the parties specifically agreed to the application of federal maritime law and it is maritime law that strictly construed as warranties and materiality is not relevant in that instance the other point that counsel raised was that the policy did not provide or require that notice given to star in advance of the cargo being put in the trailer as ron arad asked well that may be true in the sense that it didn't require a particular trailer to be but certainly locations had to be told the star in advance unless you were going to fall under an unnamed location and the reason for that was simple there were prior thefts and stark conducted last inspections of these facilities to make sure that they were burglar that there were fire alarms that it was a secure facility for high value cargo most importantly though your honor directly to your point which is the broker told laptop plaza in advance of storing the cargo in the trailers that the policy required the goods to be in warehouses and yet locked up laws it never goes back in telstar never tells its broker that what it's going to wind up doing is putting these laptops into a trailer the last point i wanted to raise was the nature of this trailer because what laptop plaza now seems to be saying is that it is the nature and use of the trailer at a particular moment in time which will govern whether it is a structure or not now mind you shrug sure is not what's used in the policy what is used in the policy is warehouse and what we have here is a trailer that was not modified as laptop clauses says the stanchions that laptop was referring to are mere trailer legs you need them to keep your trailer up so that the cat can come under and connect to the trailer there was no modification there was no burglar alarm added there was no fire alarm added the only other mm modification that laptop closet best can reference is a leveling plate that connected the trailer to the warehouse for forklift to go over to unload the cargo however that levon plate was not in place at the time of the theft it couldn't be in the district court found as much it couldn't be in place because you could not close the separate doors to the trailer and the separate doors to the warehouse at the same time these is the district court found artists completely discrete object what do you say t of the aspect of the dictionary definition of a structure for the storage of merchandise your honor you have to look at the dictionary definition in its entirety and it's in totality i don't think what what what laptop is trying to do is grab one word out of that dictionary definitions out hot this is now what the policy means it doesn't let's look at what the district court said what the district court said was it's a building it's a room it's a structure what is a structure mean if you look at it at miriam webster definition for structure it gives as an example a building so we can't just isolate structure and say ah this is it a car isn't a structure no it's it's tied to what the purpose was and the other aspects of the definition being where house being a room a building and the like and that's just simply not present here we don't get to leave commonsense at the door to come in and nit pick one word from the district court judge so must there any other questions or issues that the aspect of it which is for the structure for the storage of merchandise your honor the trailer isn't intended for the storage of merchandise it's for the movement of it is use it is not it is not it is for the movement of goods just as we would call a trunk  of i would agree with that as well i mean even if even if you would call the trunk of the car or the trailer structure the intention of building such a thing is not from the storage of goods i would agree absolutely on so must is that stipulation you mentioned in the record you referred to a stipulation about a marine insurance i'm sorry a choice of law provision in the hard to argue that the term the requirement of the where house isn't material when what is substituted is something that's on wheels and can be rolled away absolutely on and there is there is case law certainly from the state of new york which indicated the failure even set the alarm was it was a material breach of those warranties for burglar alarms and the like and what what must be remembered again is there is absolutely no connection to the burglar alarm in the warehouse to this trailer proof positive as they drove away with this trailer without ever triggering a fire alarm or a burglar alarm thank you thank you thank you for letting me make a couple things clear in terms of the definitions that we've been talking about now the two definitions that the district court cited she cited black's law dictionary for the term where in the house and black's law dictionary uses the word building when she quotes miriam webster and she says or i'm looking at the special at next on page eleven and gives and gives the alternative definition is or quote a structure or room for the storage of merchandise or commodities unquote it doesn't mention building so yes is there a definition that says that it's a building yes is there a definition that says it's not a building yes those are the two definitions the district court quoted this is not me seizing on a single word it's me seizing on one of the definitions that this district court provided and arguing that if you utilize that definition then this this storage facility would constitute a warehouse which is a structure unfortunately one that is building unfortunately the one that says building doesn't say for the storage of goods it's is used for the store in the one that says director includes that it has to be for the storage of goods or the market for the bend but that's what was being done at the time that this last took place that's the other dictionary definition you your combine your taking the one from no i'm quoting a structure or room for the storage of merchandise for commodities there it was there was merchandise being stored in structure used for the store that's that's that's what i'm saying and when we're talking about locations it should be we have to be clear that the only identified location is the address and that by the way we didn't get into it but in the there's a lot of citation to the royal case and why the royal case should be persuasive to this court in that case the the insurance company identified specific building locations building five f building twelve here it just says a location so you could have multiple warehouses  matter is there was quick reference to the to the the last inspection that was done if the court looks and it's on page i believe eight  eight recommendations that came out on october sixty days to comply with any recommendations eight ninety three ninety two eight ninety three gave them sixty days to comply october twenty ninth two thousand and thirteen when does the last take place december thirtieth fourteenth december fifteenth within the sixty days so even if they hadn't done anything even if they have gotten this profile that says look we know about this and you have to do x y what the policy in all endorsement shall be governed by the federal maritime law of the united states period in the absence thereof the laws of the state of new york shall apply so that choice of law provision of course it begs the question as to whether maritime law  apply to a warehouse indorsement that is completely non marine in nature and what the courts have done when faced with that provision is they call a cat a cat and a dog a dog so you can have all the agreements in the world but you can't apply maritime law to a non a maritime risk that's what all of the courts that sever the policy say as being nonsensical they're not going to apply principles of maritime insurance hawg whistles in one case or coffee beans in another case in the storage that has nothing to do with maritime thank you because you and you might think of making it up by selling