morning your honor still was yelling from the department of justice here today representing united states and i'll be truck the supreme court of alaska articulated a two part test for determining whether or not a third party is an implied insurer and an insurance where the risk to the insurer is unchanged and where the third party is within the class intended to be benefited by the parties to an insurance contract then the court said the third party is an implied insured under the contract after making contract was to protect an employer subject to vicarious liability for injuries caused by bristol bay employees in the course of their employment acting within the scope of their employment in addition to the court policy didn't did not embrace risks associated with insuring the united states and also the alaska supreme court cases struck me as a little difficult to reconcile and one element in the in in some of them was then one party was required to buy coverage for itself and the other for example landlord and tenant might have a lease where it's a net net net lease or triple net lease and no one tenant this required to obtain all the insurance on the building the fire insurance and also liability covered protecting both itself and the landlord and the tenant of  liability coverage but only protecting itself not protecting the landlord in this case i don't recall in the record that birth of a native corporation was required to obtain insurance protecting the united states as most recently in the simmons case the supreme court of alaska held that a plaintiff in that case had standing to sue and insurer because of the availability of the implied insured doctrine that was motorists case and under insured motorist insurance policy in which the daughter of a named insured of a potentially named insured would have had standing to sue the supreme court said because she might benefit from the implied  insured doctor and there was no claim that there was any agreement or contract between the father and the daughter in that case to cover any injuries in that context so we would say that that is definitely what your honor has noted the  agreement or the contractual agreement between a lamb or going to a tenant to provide insurance coverage is an element of some of these cases but in distilling it's cases not the truck the court identified these two factors class and r better in front of a jury and if the defendant is an outside corporation or the united states government on the other hand this is not a jury krokidas this is not for a case i guess if you're writing policy though for there being some property damage that the owner of the plane would have lost out on the property that the owner of the plane would have lost use for in this case the risk would be the risk that an didn't matter who the employer was whether it was possible bay or the united states the risk remained the right risk coming the same because the harm that was to be insured against was the harm that could be caused by an employer employee whether the class meant to be protected or that the risks would somehow change of the united states were an implied insured they argue for example that the cases are limited to the property insurance context but that's which predated the truck involved a wrongful death claim and if the supreme court of alaska had intended to limit the stock and only to property insurance property loss claims it would have a very easy basis for holding that  property context and i also argues that there are additional requirements besides class and risk within the doctrine so for instance they argue that the united states is not an implied insured because bristol is the supreme court of alaska said to us it was risk that was determined to do in that case so the only point about olympic is that it was risk in class that were the salient features there and though it did go the other way as as i was mentioning before you insured becomes legally obligated to pay as damages close quote so to argue that it's only bristol thanks the question because the question here is whether or not the united states is an implied insured to say that only bristol could be assured and insured assumes that there is nothing no employment for doctrine could ever be possible that it was only being named insured that's precisely the question that we're here talking about today more over the liability falls on the united states and not the native corporation that's correct you are correct that's correct so if the insurance company only insures for the liability to third parties of the native employee for conceivably i'm not sure that the law is settled in this context at least i haven't been able to find a clean answer as to whether or not bristol bay in this context it's sued for defamation let me make sure you understand what i'm asking and why i'm asking yes your honor struck me that your strongest argument was that if the insurance company doesn't insure the united states for its liability as essentially the party le holding the bag for the native corporation then it gets a premium for nothing and gets a premium and it's pure windfall that struck me as you should draw a start and i'm trying to find out of that argument is well well founded yes or no because if they get a premium for something it could be well kind of like judges liability insurance judges have absolute immunity for the mistakes we make on the bench but we have some exposure for certain kinds of mistakes that we make and i don't know what mr asian or something yes or no and they are the insurance companies not getting any windfall they're charging a premium commensurate with the exposure of the judges have that's the kind of policy that continental sold to the native corporation your argument is not well founded on the other hand if the united states is left holding the bag for anything a third party could sue the native corporation for your argument is well founded and i'm trying to find out which of this there is a middle ground i believe your honor the middle ground is that there could be some risks outside of that she that they still they could conceivably be liable for that could be and if we thought that it was an undisputed fact in this case that just doesn't tell the life you see i'm thinking suppose that there's a defamation claim against the native corporation and th and the person who got the bad reference to those so there be reason for premiums to go up just because employment litigation is going up i think your honor in the case where there is an explicit  ambiguity that there are some things that the f d a may not cover i don't know what those specific things are i guess what i'm trying to say is i would've been helpful if you told me that at the beginning that you think there may be some friends there and you don't know i before the f t c apply until after the f d a applied and it's an undisputed fact that if continental had intended to exclude f c c coverage they could have done so by making it an express exclusion in the policy and in fact that they would have done so but there that there was no exclusion in this case whatsoever the last point i'd like to address before reserving a little bit of time is c n n s claim that the  determined that where an insurance policy had extraordinary broad coverage to cover anyone who would have been liable for a negligent act i mean excuse me an automobile accident that the united states had the benefit claim that congress intended for the united states always to be the sole and exclusive cover of liability where the f t c applies and my point is that in these cases we know that congress courts have held that congress did not intend that because it permitted private insurance coverage to apply in these companies on and these motor insurance coverage context my only point there is that in that for that point the distinction between implied in an additional insured doesn't matter the point is that congress did not intend for the united states to be the sole and exclusive carrier of risk i mean that context that if there was private that was available and a pleasurable that private insurance should  pay out for damages that were incurred that's my only point on that on that issue if i could i know it got very little time but i'd like to reserve it i me me united states is liable to third parties for torts of the native corporations employees and native corporation buys liability insurance that if the liability  though the insurance company gets a premium without providing any insurance is that true or is there something that it's providing bristol recognized that it had risk outside of the infiltration act and it chose to purchase a liability policy to protect itself now that the mere fact that the government has to certify claims as being within the nation  name united states as an additional insured so the only argument here is whether alaska somehow implies the united states as an insurance case and the case decided by the government really are really based on two separate he was not the owner and that kind of situation interest company is not going to be heard to complain that they're not that they are not on the hook for the whole ownership interest of the property but they somehow only get to pay the  farmers insurance and taylor established both but there's very similar cases established that that doctrine only applies in ownership less the type situation where you're talking about property insurance that does not apply can't get into the whole issue of whether risk is the same when you're talking about liability insurance now that was confirmed by the supreme court our last supreme court in the olympic case and in that case it was not you and it could be the landlords fault the firemen die and it could be the tenants fault the firemen died and in this case by contrast the government doesn't do anything itself it just picks up bristol bay native corporations there's statutory immunity that liability is never stablished now contrast that with the liability of the government there is a liability of the government as federal tort claims that coverage exactly when there is no liability to parties release of the employee and employees insurance company and no effect whatsoever on the liability of the government under the federal tort claims that the liability of the federal government is a entirely separate issue than the is you looking at that there is i'm reading the policy is what i'm doing and any assurance from mike that you know have to have a judgment first let's be concrete so we can all understand what we're talking about at the same time understand the schemes here instead of bristol bay native corporation having that employers vicarious liability to the little girl the united states has the vicarious liability to the little girl my rights how far i don't think it liability is what makes bristol bay native corporation liable the indian self determination act is what makes the united states universal we need a corporation shoes on the vicarious liability and i got it right so far right ok address a couple other point that the government has raised along the way and that is one it keeps referencing the payment of the premium now united be very clear about this the united the federal fund but under the government's argument even assuming that that to be true united states would have implied rights on all policies where the policy holder ever received any federal funding there's no limit to this argument i make the employee for purposes of claiming unscrupulous policy that congress is not true if you read for fifty ethno it's only for purposes of federal tort claims act coverage the fact that these employees are deemed to be  ultimately brought against the government in this case now this is quite this type of implied claim is also barred by the united states versus gilman decision as united states supreme court and i know that decision there are no implied inde was the court should not imply claims in favor of the united states when they're not still provided for by statute that's congress's realm and courts should not be legislating or implying claims in favor of the united states and  this court confirm that principle and question now congress knows how to create rights against insurance companies when i government paid the claim if it wanted to do so and it easily could have done so in this case if it wanted to under that and in insurance company even though the treatment is for free to the party and that individual is not individually liable that statute creates client billeted for the insurance company although there are no indemnity rights under the medical insurance policy that of the contract to not provide coverage to united states now the only way the united states could ever bring a claim is that somehow there was an implied right under alaska law there is no such implied right case and there's also the industrial indemnity case what those two cases established is that an injured party and somebody else who may be liable but you know and they thought they had an agreement to be added to a policy that were not in those particular situations they don't have claims against that policy they can't directly to continental they must first if there's any if there's really any right at all they must first establish the liability of the named insured and then the under that under that theory any time be implied potentially implied insured would be liable by definition the named insurer would not be liable and we know that that's not the case because the supreme court has recognized the possibility watch the insurance wasn't casualty insurance like every truck it was liability insurance and there the supreme court says it does matter and states doesn't act except through its employees so there's no way that the united states could have done something to increase liability the only liability that existed was liability for the purpose of this has nothing to do with the distinction between a heavy truck and olympic that i was wrong because the the point was that and under olympic risk could have been greater because the owner could have the time the landlord could have done something that would have increased the rest of coverage to the insurer don't think the supreme court was explicit about exactly how the risk would be greater i thought that it was a fairly direct inference from the case your honor that the point was that there were things that the tenant excuse me that the lambert could do that could increase risk and that it would be unfair to assume that just coverage of the ten it would also cover the acts of the landlord and in this case the united states can't act it's not an entity that acts the only and the only thing that acts are the some state programs to teaching kids how to swim of water safety program so it's liability insurance to be very well before the other things that it does like if you run a program teaching kids how to swim you need liability insurance because some of the little kids made ground when they're trying to learn how to swim and that means it wouldn't be an empty policy empty of any possibility of relief and so far as we can tell from the record bristol very does other things it doesn't just run yakov rehab center for the under the indian self determination i'm not i'm not sure about that but the facts are in the record on that point i would have to double track and i could i assume you know the record much better than me since it's your face i certainly have reviewed your record your i don't remember any facts explicit and in the record that speak to the other things that you personally does outside  see me c n a conceded that it had among other things a memorandum from bristol based council saying that if you want to exclude f c c any coverage you should have a an explicit exemption in the policy to help your insurer better