language that's contained in the employer's liability the second error was in concluding that any conduct that would meet the willfulness standard under new mexico law is mutually exclusive first about the the fairfield case the fairfield case even though it was certified question from the fifth circuit regarding public policy regarding insurability example damages prim a suspect discussion of in the public policy of texas on a pretty detailed analysis about how the employer's liability coverage came into effect in the first place that it was a statutory scheme adopted by the texas legislature when it passed the texas workers compensation that that there were regulatory action taken by the texas department of insurance that in par created the form of policy that ended up being the liberty policy the purpose of which was to and i will the legislative action represented by that texas workers compensation act to come into being and in that policy and in that statute there are only two exceptions to the exclusivity provision in the worker's compensation that that would give rise to the employer's liability coverage a form approved by the texas department of insurance intentional misconduct by the employer or grossly negligent conduct of the employer and an exception created for punitive damages arising out the texas department of insurance i'm sorry the policy itself accepted the intentional act portion of the exclusivity exception in that there was an intentional act exclusion and however there was not an exclusion for gross negligence what's the best case texas case involving gross negligence that involved an intentional  gross negligence statute in texas but also as the second element in delgado then you're no longer talking about intentional conduct you're talking about willful con and willful cond as with gross policies that are mentioned there and cases that are mentioned about what's the best case you've got that stands for the proposition that accident means something different in the employer's liability context from in the others that you just talked to fairfield the fairfield case the beginning of the fairfield case is an analysis of the legislative history of the combat it and how that employer's liability coverage came into execution of the scheme real an intent to provide additional insurance coverage under the employer's liability coverage for an employer's gross negligence under t v s policy a participating employer would have coverage for a worker's compensation claim under part one of the policy and claims based on gross negligence which is part two of the policy and so they made that specific funding implicit in such a finding that there was coverage provided for gross negligence under the employer's liability coverage implicit in that has to be a finding that gross negligence is not inconsistent with the definition of accident and because if accident was not included did not include the conduct that is gross negligence and gross negligence statute in texas it couldn't of race the conclusion that rate and they're more importantly even though this was a question from the fifth circuit certified to the supreme court that that conclusion that i just read is the foundation upon which the further analysis necessary to answer the fifth circuit's question was reached so  may not have been the question posed both a circuit but the court's analysis in the beginning of that opinion about the legislative screen about the t v role in that about this being a policy that's a creature of regulation by the texas department of insurance to meet legislative needs and then the ultimate conclusion that the in four years allow a bill of the coverage covers an employer for gross negligence speaks to the definition of as it appears and the knowledge of the person that you're accusing of misconduct well over in texas we have the insurance policy that's going to interpret that new mexico statute in order to determine if there's coverage afforded under this texas policy dixie electric or that lawsuit filed against it in new mexico applying that were missed and so what we chose to do is to look carefully at the gross negligence statute which under fairfield we believe the sta that there is coverage for gross negligence under the employer's lot of the of the coverage in texas for a gross negligence case in texas and we compare bat to the elements of this will form a standard in new mexico with because our concern is only whether or and so what you're saying is that you can have willful conduct and still have that qualify as gross negligence have it be insurable under the employer's liability coverage in toward gross impression and what we're dealing with a cause of action created in the mexico and trying to see whether or not that cause of action fits within the coverage afforded under a texas ensure what you're saying then is that in order to vote  fifth circuit level but here the gross negligence objective standard is and after all mr which when viewed objective leave from the standpoint of the average time of the currents involves an extreme degree  so what's the earlier that you got thirty seconds on that i'm sorry the error in that respect is that accidental is not defined generically in this particular case because of the discussion of the fare for the accident is broad enough to include gross negligence and we believe that because accident is broad enough to include gross negligence in texas it's likewise relevant to to include a violation of texas insurance all essential what dixie does in order to get to coverage is go through an argument that one the new mexico don't got a claim is like gross negligence to fairfield establishes that gross negligence climbs a cover under the employer's liability policy therefore this don't gado klein which is like gross negligence must be covered but the fundamental flaw is that the new mexico don't want to claim is not why gross negligence in the most important respects and that is in that first prong which requires an objective expectation of the specific injuries suffered by the employee and so when dixie sad as well dixie concedes that they could be reasonably objective we expected that the conduct in dixie would result in the death of mr hubbard as it did that absolutely takes it out of the definition of accident texas courts have consistently defined that sort of as undesigned unforeseen results and that's what they look at as they focus on results so the second part whether or not fairfield establishes that gross negligence claims are covered is irrelevant to our discussion because our discussion does not involve gross negligence it involves conduct that is a step i would say higher than gross negligence and falls into the intentional tort arena plenty of go gado cases that say negligence is not enough just you know of any that says gross negligence yes your honor and unfortunately perplexing not be the one that says that mavor says d c p midstream l p which is that two forty one p third one ninety three specifically says and that's a new mexico court of appeals case in two thousand and ten under these facts there is little doubt the defendants were negligent perhaps even grossly negligent however negligence is not enough and generally in new mexico for delgado as in texas for intentional injury exception to the worker's comp cases consistently say the absence of safety measures is not enough to constant just generally that create a dangerous condition is not enough to take it into the intentional level and the dominguez case which i gave you the site earlier said basically they dictated what the court described as the employer's appalling disregard for safety requirements and employers appalling disregard for safety requirements designed to help prevent injury and death on the job does not equate to an employer and here i'm quoting specifically and willfully causing the worker to enter harms way facing virtually certain serious injury or death as contemplated under don't auto the new mexico courts consistently said we're not talking about negligence we're talking about an intentional toward an objective expectation that the conduct to result in not not injury generally but the specific injury and that's what somehow gets lost and several times gets lost in dixie's brief when dixie compares the gross negligence first prong and the intentional and they don't auto first prong they leave out dixon leaves out the word  the injury it's not that you created generally unsafe conditions in your workplace which may or rise to the level of gross negligence it's your expectation of these specific injury and texas has said just as new mexico has our brief says the fundamental difference between negligent injury or even grossly negligent injury and intentional injury is the specific intent to inflict injury we hold that the intentional failure to furnish a safe place to work does not rise to the level intentional injury except when the employer believes his conduct is substantially certain to cause the injury so again what we have in dixie the only way dixie can ever be liable outside the well for workers compensation benefits in new mexico is under this delgado climb new mexico has a narrower exclusivity exception to its worker's comp claim than texas to texas except intentional injury and gross negligence that results in de mixer doesn't do that so in order to start to get to this intentional injury exception you've taken yourself out of the definition of accident in texas where we look at when we look at the effects of of intentional acts i mean essentially there's voluntary ochs that result in effects that are undesigned unforeseen or unexpected that's the definition of accident in t and sort of the one of the major cases on that the mid century versus lindsay case the top lawyer getting into a truck with a gun rack which i think of as sort of an emblematic texas case or  basically nobody thought that there was any sort of subjective expectation that that was an accident nobody critics objectively expect a toddler trying to get into a truck that had a gun run was going to result in somebody in the next car over getting shot in the settlement context or what tracks do we look at to be certain that there was intentionality as opposed to some equipment you know supervisor borrow like the kid having no intentionality in the i'm sorry in the what in this type of context where you have a settlement good correct well and in this context and i think the fact you have to look at the fact that the only way dixie could ever be liable considerable facts but there that's basically why i was asking him the question about they conceded that the undisputed evidence supports a finding that jack barrows willful conduct resulted in hilburn stat that was the last line of the confession but there are several other sentences before that that beef that out so and that is correct and i think that is i think it's as we've said in a brief that that's dispositive here  delgado claims work is there is sort of an initial motion to dismiss type proceeding where the court decides you know is is this sufficient does it rise to the level to even perceive this case already past that level which is why you know obviously you have these sorts of serious settlement discussions and because there had been this at least preliminary determination that the allegations were going to satisfy  so your position when they're certain their briefs and then reiterating their reply agree that the texas law contemplates accident that can include intentional acts there there is the way that that's repeatedly said in their brief accidental injuries that is the result of an intentional act is there any case that you know of in texas that supports that proposition no your honor or not i mean certainly there's and some i will say the some carriers have wanted to say any sort of voluntary act you intentionally you know drove your car therefore it can never be an accident and courts have said no that's that's sort of a specious reading you're going to have voluntary acts but if the effect of your rot is undesigned unforseen unexpected then you have an accident and a lot more homes case basically said texas cases have consistently said the labels attached to the causes of action don't matter you have to look at the fonts alleged and the more homes case said that means even sometimes a cause of action like breach of contract may satisfy the accent requirement because someone can choose to do something that they still don't expect the result so the fact that there may be fact patterns  i think i think a fair reading of fair failed is that yes the texas supreme court by assuming that gross negligence was potentially i think they said not necessarily precluded that there may be fact patterns that satisfy gross negligence and also satisfy the accident stand because what you're looking at is this idea that you've got a heightened degree of risk you've got you've ignored safety measures at your at your work site for example but if you don't satisfy that objective expectation of the injury once you get to that objective expectation of the injury and the conduct was reasonably expected to result in mr holmes death once you get to that you're into intentional conduct and those are not covered under the policy dixie has suggested that that that means that somehow the coverage of the policy is a loose story but again there is certainly coverage under this padilla case that saddam or brief the new mexico i believe it was a court of appeals recognized one of the employers complaining about the retroactive retro active application of delgado said but we're not going to be able to get insurance coverage and the court essentially said you would never be able to get an insurance coverage for this intentional act and we don't want you to that's that's a public policy issue that's generally consistent so the fact that there is not coverage under a intentional conduct doesn't make that more ambiguous terms of consistently defined accident in the same way in texas freedom of contract is paramount implores liability policy requires bodily injury by accident the new mexico worker's comp exclusivity exception requires an objective expectation not a generally dangerous conditions but of the specific injury suffered by the claimant which is what we have here unless we distort the policy  mexico they had an exception to the exclusivity rule for intentional conduct it was caught the actual intent to harm so delgado was creating something that's less than intentional conduct it was creating a new cause of action and did create a new co and whether it characterizes that new cause of action is not accidental or not is of no moment in this particular case because we're going to go with to fairfield fairfield specifically said that the employer's liability coverage exists to cover statutory gross negligence and so when it says that in a minute lee distinguishes the definition of accident in our case from the best the nation of accident that you'll find for most other policies because most other powers are the result of arm's length negotiations that employers liability coverage and worker's compensation statute  and workings compensation and coverage was created by the legislature and put into effect in the texas department of insurance including the creation of the policy forms at liberty had to use and so there was a conscious legislative regulatory decision made that accidental in this policy was going to be broad enough to include gross negligence if it's broad enough to include gross negligence it's broad enough to include th delgado standard in our estimation which clearly in the mexico is a lesser standard than intention and then if you try to attribute to the word accident in the employer's liability coverage that it misconduct and the other is gross not that and so if you there is an intentional act exclusion in the policy so we know that's not there but there's no coverage for intentional acts that only leaves one purpose for the growth of that employer's liability reason and if that's not the case and i think that accident the word accident as used in that specific policy creates sure of a creature of legislation and regulatory which is a making because if you read the history of how that policy came to be and you read the full context the four corners of the policy accident has to mean something more than what it means under general liability policies and automobile policies and all reasons because of the way new mexico treats the cause of action it's a lesser standard than intentional conduct because fairfield clearly states that gross negligence is insured under the employer's liability policy despite the presence of the word