that could apply would be the laws of either michigan or possibly pennsylvania however there is no material difference between the guiding principles in either jurisdiction are our research indicates perhaps maybe there is a difference  for example under michigan off the insurer the insurance company would have burden of proving that the plane falls outside the scope of coverage well if they were exclusionary language involved in if the insurance company were relying on such exclusionary language under the law of michigan or pennsylvania or any of the other wasn't school but i'm talking about talking solely about not an exclusionary clouds but the u six circuits end cincinnati insurance company that under michigan law the insurer has the burden of showing that a specific tend plan is not covered under its policy that's different than exclusion that well may well be under michigan law and that would be correct and i would certainly urge the court to view the case quite that way and now use creek is that is that is in michigan a case decided under michigan law though in that case and you got a look at the term premises is the term of art you got a look at the least well memphis creek was a decision of the court of appeals for the sixth circuit presumably applying michigan law if one carefully reads that opinion i suggest that the the court of appeals doesn't cite any michigan case that actually supports its reasoning or its conclusion i go on to say that because the policy language which must be the pole star in the analysis was so totally different in the main discrete case from the insurance policy language in the additional insured indorsement form in this case street case the coverage language senate women you're saying you're saying that the fact that you're deal had the word operations in it is happenstance one of little consequence no no i suggest that the fact that both cases dealt with a lease is in of itself of little consequence the language difference in the policy is court of critical importance the coverage indorsement  coverage to premises own rented to or used by the policy holder in our case the coverage indorsement says arising out of operations or premises owned by or rented to so clearly the mingus creek doesn't involve coverage for operations in our case clearly the coverage does extend that matters arising out of the operations of the insurer and here we're talking about a truck driver who is on the business of c c s appears at the facility because he's on the business of c c eastern is trying to traverse the area from the least stock area to the least office area of c c eastern because his business research c c eastern requires him to make that journey and falls in the process it's unimaginable that the district court can conclude that that didn't arise out of the operation liability has the liability has to arise out of the operations that well and you should insurance plans right yes i think the district court m simply because the liability arises out of the fall in the fall occurred because he's one there and two traversing the area he's traversing because he's engaged in the operations of c c easter he's not just happens to be there he's there because he's doing the business of but let's see how the district court could conclude that this accident didn't arise out of those operations is court that has recognized that an accident occurred soley because of the operations of the named insured that has yet come to the conclusion that the coverage was not provided  similar additional insured indorsement forms the additional insured indorsement states that the quote the insurance provided will not exceed the coverage and or limits required by the said contract or agreement in other words indeed it does i would suggest of the court that the proper way to read that language is that the term coverage means types of coverage not the but it doesn't make any difference because if one resorts to the insurance coverage provision in the lease it's virtually coextensive with the language of the additional insured coverage and or swim anyway it to requires the trucking company to provide coverage for its business operations and and i stress the word and matters involving the premises leased to the trucking company so and  would suggest of the court that if one looks at the parallel wording in the dish will ensure coverage indorsement form it's virtually coextensive with the provision of the lease is v insurance coverage required by the leas of the lease as this court recognized when i was a young man thirty years ago in the transport indemnity case there are two different agreements they have to be viewed differently the insurance provides coverage that the policy says it indemnity clause may say is of no moment whatsoever unless the insurance policy says that it limits coverage to the scope of the indemnity that language is absolutely embrace the same things why do we need the insurance we've got the indemnity insurance is to make sure that they can identify well but but there are other provisions in that the in the insurance clause that require the trucking thought the the if you look at the magistrate judge was reported recommendation here it's that we couldn't or courts should not get to the indemnity provision until there is a judgment of a state court i would agree with that on on conceptual grounds however what we're looking to declare the scope of insurance coverage in this particular case it's there's just no conceivable way that that liability could be imposed on any ground not embraced by the this additional insured coverage indorsement the court could have declared although it may be premature to determine the ultimate coverage issue at this juncture but the district court erred in construing the coverage way too narrowly and erred in cutting off the duty to defend up the geisha and because of a summary judgment ruling rendered for the trucking company in the underlying unless the court has other questions i have nothing further why have you back on rebuttal thank you very much character may please the court i'm john travis representing national union insurance company for pennsylvania in addressing insurance coverage issues it's helpful to there in mind the goal in reviewing a policy of insurance is to reach a reasonable interpretation in keeping with the intent of the pardons one fundamental question then is whether it's reasonable and in keeping with the attentive c c easterner c c e and it's insurer national union to afford overnight coverage in this case we say no the the policy that was issued here says any person or organization to whom you that is the eastern the less he becomes obligated to include as an additional insured under this policy as a result of any contract or agreement but only with respect to liability arising out of your operations or premises by were wedded to you one could make a pretty good argument that the district court limited itself as it said to geography that is to the premises and didn't concern itself so much with the operations if you get out of your truck at of let's say dock eight and you won't have to walk across dock ten in order to get to the c c offices why aren't you in the business about the operations of your employers is the correct any person organization to you which is the lessee become obligated but only with respect to liability arising out of your operations cease easterns operations the overnight is arguing that that's enough we say it doesn't make any difference operations or premises the fundamental question is how firm or tenuous a connection need there be between the operation or premises of the named insurer and the loss now in this case didn't did the district court focus on on premises for a district court did i submit judge rica that it really doesn't make any difference premises or operations of this particular area where the loss in then there would be coverage right guess risen out of the operations of certain rights and now you have the c c eastern truck driver walking go to the police office space is that not arising out of the operations nothing for this additional insured indorsed because the risk assumed first of all is limited and second must be limited in keeping with the lesser of what's required by the coverage or limits of the lease if you look times during the term of this lee c c eastern agrees to keep in full force and effect broad for a comprehensive liability in property damage policies including which means that's a subset contractual liability endorsements and covering their obligations under the lease so that doesn't mean that's the whole picture the whole picture then comes out in the in the insurance contract the lease can't override the insurance contract anyway it can't override the insurance contract but because the insurance contract refers to the agreement you must make reference to the agreement to ascertain the intent of the but i've been looking at the actual words of the agreement it says including so that is i mean that's the whole ball universe that just means that could be a subset of the type of liability coverage that you might end up getting i agree or honor but you have to also look at the additional insured indorsement that says the coverage afforded shall not exceed the lesser of the coverage and or limits required by the lease and under  lease the parties contemplate that species easterns responsible for what it can control for its operations and overnights responsible for what it can control and its operations this plaintiff l on property maintained operations is not different than premises how is that not different how are they the one in the same i think the determinative issue here is arising out of an in and causation mean mr leavitt awful last arose out of the operations in the premises of c c eastern we say it didn't arise out of either because it happened in a place that was controlled by almost like you're making a right out of caused by so it would if it was caused by the operations of eastern that's one thing but he was arising out of means in connection with and in connection with his of his duties as an employee third circuit considered an issue similar to this and the the court they're interpreting pennsylvania law says it's not strictly a but for case in the meridian court referred to another important third circuit case u s underwriters versus good f mutual and the court there pointed out that if you're looking at this but for test you can devolve into struggling with the leave legal equivalent of angels in pinheads and the court said that  michigan we haven't perceived the significant difference fraction asking in the middest creek case though which interprets michigan law of the court there are unquestionably held that you have to look at the lease because they're in in keeping with the intent of the parties look to the least which did not obligate the tenant to maintain the area where the plaintiff felt want to emphasize that the plaintiff there had just come from the tenant named insured store and then fell that was not held intersect but also a nurse at the insurance policy indicated that the insured premises included the if person and waves so where that person fell was the insured premises under that policy of insurance so i think are sick for that reason was properly decided but i think the court heard and not looking to the lease because again the gold standards and is the intent of the parties to the policy says you have to look at the lease you have to look at the lease but i just said it when you look at the lease the word including contractual liability in to us was covering cc's obligations under its lease is just it's part of the obligation that you have for insurance it's not the whole thing i agree with that your honor but if you look at the lease as a doesn't cover the whole waterfront of what the intent of the parties is with respect to the allocation of liability and then that the court should look at what is maintenance in paragraph nine have to do with insurance in paragraph eleven the entire agreement represents a statement of the intent of the parties as to who is obligated to do what and i would also point out that the the appellant's position is really inconsistent and that's pointed out as well in the miscreate talks about coverage for liability arising out of premises doesn't even use the word operations it doesn't so i mean it seems like if i understand you've got to say that operations and premises are much the same but usually if you have extra words they mean something extra they mean something additional some other circumstances in which there would be coverage when you're saying no and i still don't understand why i'm saying there coextensi because under either circumstance overnight is arguing if it arises out of the premises because they started on lease premises and were going to lease premises this arising out of the operations because the plaintiff was an employee of the named insured worse they had doesn't make any difference because it's too tangential it's too ten us and it really doesn't arise out of either the operations or the promises how women would or be a circumstance of something would not arise out of the operations other than this case they met might be numerous circumstances ok let it go right now when would something arise out of the operations suppose it and i'm that's and it's a very good question probably i'm not saying that it's strictly vicarious liability discovered by this policy of insurance suppose for example c c eastern had a fence with a dog in it for security purposes and the dog est and bit and there was a lawsuit against c c eastern and against overnight that circumstance would trigger coverage for both c c eastern and overnight because that last arose out of the premises or operations is that why is that substantially different from driving a truck because in this case there is a mere happenstance that the plaintiff is in employee of c c s or and the cases i've mentioned the shumway case the hilton hotels case the liberty mutual case cited at pages twenty two twenty four of our initial receipt that's not enough there has to be more than a tenuous connection beef between the last between the liability is at the wrong issue on that point in assessing whether there's a duty to defend you look at the allegations against the party who is claiming coverage not against the codefendant it was never alleged that the liability of overnight arose out of east operations the lie villany of overnight was because overnight didn't maintain dock ten that collapsed so it's always been the case and certainly was established as a judicial matter the coverage so with respect to liability arising out of your which would be c c easterns operations correct so why wasn't the employee a missing something the like believe he didn't arise out of the fact that he was an employee whether he was in a ploy or not doesn't make any difference in our estimation i guess the argument would be that he's he would not have been crossing straight away across doctor were he not employed if he sees well i it's true if he was not if he was not working that day for c c eastern if he was not driving instructor he was not getting out of his truck to go to his office there he would not have gone and is that the equivalent of angels and pinheads we say yes and the cases we point to indicate it doesn't make any difference whether the plaintiff was an annoying not a liability doesn't arise out of that relationship was this argument made to the district workers you're right this record did not rely on this that are get your no making that the alleged liability arose out of the supposedly out of u p s s operation we've made that argument consistently from day one judgement but the judge didn't they didn't choose to articulate that in his o untitled the coverage anywhere not just on c c e's least premises in other words overnight please that if overnight causes injury anywhere to anyone in any way connected with the operations or business of c c e it's  men my hypothetical where you have the truck pulling in it hit somebody and there's a claim against overnight and c c in connection with that accident wouldn't your insurance coverage have to provide and overnight does have its own insurance and their insurance company is defending it in this case we say have primary primary well we haven't analyzed the other insurance issues we believe that courts should make a reasonable allocation of risk that insurance companies in the marketplace as pointed out by the shumway case recognize that and additional insured is entitle to some coverage but not an overwhelming amount of coverage after all and the centrally the landlord is responsible for the landlord the gold standard is the language of the policy and to the extent incorporated there in by the language of the policy relevant terms in the lease i'm satisfied the court understands the language of both i have nothing to add unless are questions do i gather the argument from mr travis in part is that the there's nothing to restrict or to cabin this term operations and it's just on expenses well it's limited by the scope of what operations means if there were an accident occurring three blocks down the street in a suit were brought against overnight on some fear or if one were to conclude that the accident arose out of a over of of c c easterns operations then there would be coverage and that's exactly what the parties bargained for in the lease the insurance provision of the lease also uses the term business operations so if it arises out of the business operations of the trucking company it's embraced both by the insurance clause in the lease and by this indorsement would bargain for in a commercial lease of portions of a facility leasing part to another entity that's going to command and perform operations possibly run people over with trucks possibly hit the building possibly hit a light pole and in off the highway there could be any number of claims that could arise out of the operations of the trucking company and that's what this lease and its insurance cause and this insurance indorsement embrace in this situation and indeed judge ambrose absolutely correct the district court here limited its analysis to a territorial question premises if found