two contradictory and inconsistent findings with respect to the existence of a lease in the simple elemental question in this case for determination of coverage under the trucking policies is whether or not a lease existed in the order is whether or not a valid and enforceable lease understood the parties not to disagree that it had to be in writing in order to be valid given the circumstances of the case and my wrong i extended beyond a year to be in writing am i wrong i think the staff think that is incorrect i think the statute of frauds in this case under georgia law does not apply st of all the statute of frauds is a personal defense grange was not a signatory to any lease contract and therefore not in a position to raise that defense secondly even if the statute of frauds did apply the partial performance exception applies in this case and excuses the requirement  valid enforceable legal lease contract st i would point to the payment the insurance premium which was nearly five thousand dollars or ten percent of the total amount of the insurance premium for all of the tea and cheese  material fact that there was at least absolutely i would agree if that's the whole case really i would agree that when i want to get right to the evidence about that that's the whole case turns on well that i am trying to do so in terms of why we contend there is an enforceable legal valid least in this case and what and what evidence indicates that in fact i think all of the evidence of record indicates that i know of no evidence of record that indicate that there was not at least that she had not least vehicles for a few years prior there thereby indicating that this would have been a multi year lease because there was i believe the st policy was issued in march of fourteen her deposition was in august of sixteen so that's over two years if you want to talk about the length of the deposition i think it's important to point out there are two distinct companies here trucking and trucking grating although they were related because they were run by the same folks but it's a small privately owned company granges a large one billion dollars corporation i bring this up because the behavior of the parties in this case all indicated that there was a least vehicle that the truck was leased in this situation  grange had the opportunity having written the policies and by the way i should mention that both policies are the same policy forms issued to trucking and issued to trucking and grading that's excluding the umbrella policy grange could have simply said if they wished that there was no coverage for lease to be it was that you that language is not anywhere to be found in this policy either policy in this policy form document i wanted to just read quickly a statement the judge james made that i think is important from a simple order and it says one company leases a vehicle to another little the less or can i simply take the vehicle back whenever it wants the contract and specifically provide the circumstances under which the list or can take the vehicle back because lease agreements generally provide the lessee with the exclusive right to use the vehicle he goes on to say that in that sense the vehicle belongs to the lessee may please the court your honor in preparing for oral argument i had used trucking as the previous one for forces trucking and grading as a preacher for four seasons trucking and grading i will try to use the coverage of the trucking and the grading policies was trucking in grading did very early on in this appeal we thought the motion to adopt the portions of the meter base is brief that address coverage on that under the trucking an umbrella policy difference in o p with respect to the truck that was about the incident trucking and trucking integrating are the old they're owned by the same but by the same person is a family owned company so why is   what's the purpose of the lease your honor i  increase company signed a lease with the trucking company so that it could use that product and i believe that that's the set of problems identified as an insured vehicle under the grading policy so grading needed to have the exclusive right to go ahead and use that truck i believe to be identified as a covered vehicle under the grate on policy but as a zero dollars ten cents lurking in the background of some kind of tax concession because otherwise it doesn't make sense to have to  have been a tax consideration and i also think it was an insurance consideration as well because that truck that was involved in the incident it was identified specifically as a covered vehicle under the t n g policy right and so that's why i think another reason why i he'd regained control between the st hit in the nd that might cause you a problem but your situation is onder stand is that the causation vehicle driver never gained control that's not correct around our position is that the definition of accident is governed by the terms of the insurance contract and the greater policy grading as a multi billion dollar insurance company had the saying the condition is the same so long as the driver of the colonization vehicle doesn't recant control which in this instance i thought there was no genuine issue of material fact as to whether he regained control but if you want tell me i'm wrong in thinking that you went on that basis have at your honor i'm out of time you got two extra minutes because i've been talking on your time appreciate that your honor there is a georgia supreme court case it's state of property and casualty company versus mattie that case does adopt a specific definition of accident but what the supreme court and i believe is judged by it just as in my eyes made very clear in that case is that definition of accident adopted by the supreme court in that case is only a default rule so that definition only applies in the absence of the insurance contract not defining what an accident is and i think the supreme court in that supreme court case made that distinction about three different times saying look you know in the absence of a clear definition of accident this definition applies so in this case whatever definition the supreme court adopted for accident in that case doesn't apply because the t n g policy defines accidents specifically the definition of accidents says that accident includes continuous or repeated exposure to the same conditions resulting in bodily injury or property damage and i note that the definition used says conditions in the plural so what that means your honor is that if there is more than one condition that rd party driver was exposed to an a ccident that condition all of the conditions must be the same so in this case and also that definition of accident says that whatever conditions that other drivers have been exposed to b the insurance negligence those exposure to the same conditions must result in vital injury but the provision you just read doesn't really define accident it says what accident includes and so how is it that  we if if the policy how does the policy conflict with state farm because that's where your argument is that we should be going under the policy and that there's this is more than one accident and we should not follow state farm correct it you have a definition of x on the policy so we should follow that and not look to state for correct that's why argue my argument is not necessarily that the definition of accident is contrary to stay home i don't think we should compare and contrast the two i  my position is that there is a definition because there is a definition of the state farm's not relevant the definition of state farm's but it's not really and and this is my point it's not really a definition of policy it says accident include it's  vague i think well it's and so why does state farm not step in their welfare state farm doesn't i think i think it is a definition i think accident can certainly include other things but at the very least it includes exposure to the same conditions and i think when that the definition of accident includes that component equal correct correct because you folks and a few seconds apart they were not the same conditions because they were different collisions there was the st because they were different coalitions the force different the angle of impact is different the force of impact is different the injuries were drastically different and i think all of that has to do with the fact that terry slaughter the beaver basin were exposed to very different conditions under your theory any time there are multiple under ok under under this definition of accident if there are separate collisions there would always if there were separate collisions there would also say rather more than one thing if the involved there will always be separate accidents under your approach under under this definition not always like for example if if there wasn't this definition and if it was possible no no there is this definition give us an example under your interpretation of this definition where there wouldn't be multiple collisions for purposes of the policy if if the if one of our dump rocks was parked in a parking lot and gas leak from the gas tank and ignited if there was like a cigarette butt on the pavement and gas ignited leaking fuel from the gas tank and it turned into a fire and that destroyed six cars and that is this you'd have multiple vehicles involved you'd have multiple vehicles involved in an accident but you would have multiple collisions but anytime you have an insured vehicle that during one accident loses control hits multiple cars these are going to be multiple accidents by theory under my theory correct correct  position that it is dispositive on this appeal whether or not the lease existed while i will agree with your honor that the existence or the nonexistence of lease is an issue that's not the dispositive issue in my mind your honor the issue is to be resolved is whether trucking had to have permission from grading for trucking is owned driver to use trucking own truck on a trucking job what i would do you would in permission lease right right under the lease of which has never been produced it which there is no evidence of any consideration for the lease we have no evidence of the terms of the lease and it is questionable whether it even existed you know that is not the dispositive issue as illustrated by judge the judge in the united states district court that is judge jones in order for it to fit within the policy definition of the grange policy as it covered b at all the issue is not whether or not it's least the issue is whether or not it is borrowed and for it to have been borrowed there had to be the exclusive use rights conferred upon in this case supposedly grading in order for trucking to have borrowed its own truck back when this incident occurred the record in the core below lacks any evidence of any lease which confers exclusive use rights to great what i mean by that the evidence that the court below had evaluated is the mere conclusionary assertion in the form of an affidavit from ms acton said and let me be clear your honour's ms that consent is the president not only of trucking but of grading as well so we are literally looking at a situation where based on the theory of the ms that can say i'm going to decide on this date that i'm going to give permission to myself essential to use this truck which the evidence actually demonstrates was not only equally available to but to both of these entities but as your honor noted grading hadn't even done any work for at least the year before this didn't even have any employees there is no evidence and to this day there is no evidence of the actual terms of the supposed at least it's our founder stand your argument right and  i understand and i think i'm in agreement with there had to be given exclusive rights to that's accurate and here given the procedural posture of the case your position is there's no genuine issue of material fact that t n g had exclusive rights that is accurate and unless they had put in some evidence of the con tent of the police and that evidence including exclusive rights but would you have a lease where you you got less to sleaze connote exclusive rights by south it does not your honor that not only does it not in other words the parties had not briefed and i am not aware of authority that says by definition if it is a lease it confers exclusive use rights and i could think of several analogies that would fit into a situation where there is a lease that occurs but the property is equally accessible to both sides and if that's the case there's no borrowing that occurs and let's be clear borrowing is not a defined term within the policy so judge jones below quite accurately used what is the common definition or meaning of the term in this contract  and in doing so judge jones looked at what do we got from ms act consent well she makes the mere assertion that there was a lease there hasn't been discussion of the rule fifty nine dollars motion for reconsideration i will note and the court is aware that subsequent to the entry of summary judgment in this case ms that consent comes up with a multi page affidavit which conveniently seems to flesh some of the issues that judge jones had with the proof that had been presented in the corp lo rule fifteen i would say that you can't introduce new evidence that would have been available before the entry of summary judgment i don't think that that's a major point of contention here today what was the corp below faced with when it was evaluating the exclusive use what we have is the assertion that there was nothing about the terms nothing about the consideration this argument that's been presented by the appellants that somehow because premiums were paid on the grading policy that that considered that that constitute consideration supporting the existence of lease thereby in turn getting around the statute of limit our schools mean the statute of frauds issue which is a very real issue in this case the consideration for i'm going to insure a truck that might be used in grading or reasonable inference that can be drawn from the evidence is that at some time prior to this accident two thousand and fifteen that grading for tax purposes perhaps i am not a tax attorney your honor i don't know this and i can really only rely on the record but the testimony is that at consent and let's be clear it's the same president for both companies that they were thinking of getting into the grading business so you know what this is one of the trucks that may be used in the grading so we better make sure that we have this listed on the policy and it was listed on the grading policy and to be clear your honor those policy limits have been paid on the grading but it wasn't listed on many of them and i guess my question should have been want to be listed on the album i don't have the answer for that your honor and the existence of the the fact that the truck involved was not listed as a vehicle on the trucking policy is obviously one of the reasons why no coverage was found under the trucking policies but merely because a vehicle is listed on the grading policy is not a consideration which gets around the statute of frauds issue that subheading five within the title thirty and number two doesn't demonstrate the existence of exclusive rights that are conferred upon grading as a result of this lease clearly there is the affidavit and i suspect in the rebuttal we're going to hear about this there is and i'm going to tell you right out it's paragraph ten of that st affidavit in which president achan since says that trucking had permission to use the vehicle again this is analogous your honor i believe that if judge carnes said trevor may i borrow your truck or use your truck and i say sure i'll come and get it tomorrow from you and i go you're not there i take the keys do i have permission to take your keys yes was it specifically conferred no but that's my truck and that's why i took it and that's exactly the circumstance we have here as opposed to your honor i'm going to lease my truck to you the term is going to be a year you will pay me one hundred dollars a month for the use of the truck and during that period i as the owner of the truck may not go and grab the keys off of your table because there are exclusive use rights for me to then in that nd circumstance say i would like to use the truck i would have to get your permission and that would be the borrowing the circumstance we have in this case your honor is there is absolutely no evidence number one of the lease but again that's not honor but that's why i opened in my opening and said that is not the essential issue the essential issue is the existence of a lease that conferred exclusive use rights there had ben in judge jones this discussion that he noted that there is no evidence of that i suspect and in the brief we heard from the pallet that at some point he's saying well i'm assuming there's a lease aren't taken for granted to the r but then and let's be clear what the core polow said is that the evidence in the record indicates that no legal lease agreement between trucking and t n g existed in two thousand and fifteen number one and number two he spent a lot of time on the exclusive use that's what's required if we're looking at a policy that's issued by grange and the policy issued by grange defines a covered vehicle again under the trucking policies which is why we're here as bar road and you've got a circumstance where trucking when the accident occurred is using its own truck that's not dispute it's trucking zone driver it's not dispute it's a trucking job that's not dispute and grading hadn't even done any work and hadn't even had an employee in twenty fi you've got to dig a little bit deeper respectfully how is it that this truck was borrowed from some other company what's the evidence that it was borrowed and it is not there the courts order very correctly a stablished that there is no issue of material fact as to that factor and that's why the granting of summary judgment on that issue is appropriate you want to get to the  accidents versus single action issue yes sir and i think this issue with the state auto mad the matty case and the comparison with the policy language that's in place here is very direct and your honor is illustrated the same course that defamation and the policy supersedes that the definition in the policy is absolutely consistent with state auto and let's be clear what the policy says is that an accident is defined as repeated or continuous exposure to the same condition in this case the condition was the negligence of m driver of the trucking truck spell and dictate carefully in that one that is the condition that was the negligence of the driver crossing the center line the policy also says whether or not it involves multiple vehicles and in this case it involved multiple vehicles your honor has absolutely established that there will never be a circumstance and the court in state auto versus maddy said the same thing there will never be a circumstance where when you have multiple collisions which occur one after the other within a nd of each other just like in matty involved multiple bicycles it will always necessarily involve a slightly different time period yes i will concede that when these two collisions occurred the angle of attack is between these two because a slightly different but that's not the issue the issue is is it eight continuous or repeated exposure to the same conditions that's within the definition of the policy and the grange policy also provides that the liability liability coverage limits apply no matter how many vehicles are involved in the accident the policy language is consistent with state auto versus mattie and state auto versus mad he said that is one accident that is as defined by the policy so to say that the grange policy language supersedes state auto is not the character issue is not the characterization that my client asserts that characterization is they are consistent with each other in order to conform to georgia law and georgia laws what applies in this case finally in less there are questions about the issues that are important to this bench i want to emphasize that the rule fifty nine issue about not evaluating evidence which had been submitted in a rule fifty nine attempt to not modify to not revisit evidence which it presented what absolutely happened is they're introducing  new evidence what happened in this case is that judge jones entered summary judgment pointed out the deficiencies in the appellants case quite correctly and according to law and th what happened is is that the appellant through his act and said let me try to clean this up despite the fact that there is no lease because it was evidently destroyed by a tree in a weather event despite the fact that there is no evidence from what i'll call the hard drive on a server despite the fact that neither grading nor trucking could ever find any payments from grading to trucking to support consideration for this supposed at least that occurred all of the sudden we have a refreshing of the recollection i guess in which all the sudden all of these suppose a terms of a lease popped up in th that's exactly what rule fifty nine the case on tripping rule fifty nine of voids you know what that might have been good information although i will know judge jones specifically and correctly noted that it pointed out the consist in his actions prior testimony but a rule fifty nine motion is not a vehicle to introduce new evidence and this court of appeals has emphasized in its decisions which have already been cited in the brief that rule fifty nine motion cannot be used to relive a gate all matters raise argument or present evidence that could have been raised prior to the entry of judgment that's the earth or versus king case which has been cited and that's an th circuit two thousand and seven but that's not enough what is enough and what was needed and what was not presented is the exclusive is evidence to support the inference that there was the exclusive use provided to grading by trucking that somehow lived on beyond the life of that grating and it easy and controlled what happened in october of two thousand and fifteen when the saxon occurred it wasn't there this court should uphold the lower court's granting of summary judgment and the enter ordering that reasoned analysis thank you mr taste and  borrowed is a genuine issue interior fact to be determined there is evidence from this ak instant that she sought permission for trucking to use the truck on the day of the accident when permit where we're talking about two distinct legal entities and this is how the truck was treated just for now but how does one get information from one south i guess her husband worked as i think the supervisor so i don't know what the division of duties between the two of testified that she sought permission on behalf of trucking to use the truck is what testimony she's the head honcho in both of them right home or a mission from our south there were others i don't know the answer to that there were others who were involved in carville thank you judge carnes to follow up on the course previous question before i respond briefly to my friend on the other side of the court recently inquired on whether  action was actually defined in the policy if you look at document forty nine dollars to which is page twenty six dollars of the document accident is the st definition identified as under the definition section so it's clearly identified as a definition in the insurance contract and that now would certainly veg because as a core pointed out accident is defined as including the same condition so certainly accident could mean something else but what accident definitely means at the very least is exposed at the same conditions and in this case i believe the evidence is clear that slaughtering basin were not exposed to the same conditions and server then i guess my point was that  i was calling it state farm but the state auto case is not inconsistent with the policy language here which is the point granges council made as well well i would not agree with that your honor because the state otoh case defines considers different collisions to be part of the same accident and the way accident is defined red has at least been included what was included as the definition of accident in the policy is exposure the same condition so if there's different collisions that can be construed as exposure to different conditions whereas in the state auto case they specifically consider of a set of facts under the insurance policy where there were different collisions and they concluded the court concluded that even though there were different collisions they were part of the same accident so that's how the definition in this policy is different from the definition adopted state