little closer because for recording thank you i want to take a step back from the briefing that the court has reviewed and look at this case from a common concrete perspective and focus on the two different insurance policies that were at issue in this case and the different types of risk that those two policies cover because i think doing so well is straight that the judgment entered in favor of the apple leave landmark american insurance company should be reversed and judgment entered in favor of national so i'll begin with the national auto policy business and those are transportation risk and the transportation functions of these vehicles is to move the specialized equipment used in s b r's business from point a to point b including the specialized equipment for example that was attached to s p r tanker and that is the self contained unit the pump and the spray and you have a special of exclusion on your policy for that equipment exactly carolyn and so you know when somebody is talking about an operator in your policy you're talking about a driver that is correct and when they're talking about operating the equipment there's a specific exclusion for that because you're not insuring the operation of the equipment on the back of the truck exactly and it's common sense because you cover maintenance and maintenance includes maintenance of equipment attached to the auto which this was yes and the the and i think that's an excellent question to focus on the way these provisions work in a policy so an exclusion removes coverage that would otherwise be within the policies insuring agreement so for example the auto policy it ensures risks associated with the mate and the ownership of the use of a vehicle but what the exclusion is is to and you wouldn't need an exclusion unless it was one of those items that would be within the ensuring agreement so the exclusion functions to say but this policy does not apply to the operation of pump and spraying a quick moment attached to a vehicle well what there been any situation in which national policy specifically plainly clearly excludes operation injury arising from the operation but that's very good that's the nub of the question right the was not really operations it was part of maintenance because when you repair something you've got to ultimately at the end of that repair process test it to see if the repair actually works so is your argument then that if you repair equipment were operating and that's exactly very good illustration because what you would not cover that we would not want if you're driving a car you're not at work in the pump you just you're driving the car but somehow driving the car or maybe if you're driving down the road and you run into somebody and the asphalt sprays on somebody it's not caused by operation of the equipment it's caused by operation of the vehicle and you have coverage so ok so and that's why people hate entranced companies because everyone says that the policies cover nothing but that is i definitely i'm not saying the policy covers nothing but you never tried it it's pretty clear that they want to operate in the pump in my answer so i was assuming that the pump operator but i would like to pursue that point out the language in the policy deals with operation of the pump and spray equipment without tying it to a particular situations where where there's an accident that could be covered by both policies here again i believe the answer to that it's no that the coverage for again going back to what we're talking about which is injury arising out of the operation of pump and springer quitman if that is the injury the policies are mutually exclusive they have near provisions to eliminate coverage under the auto policy and there is a provision in the c t o policy the landmark c d o policy specifically restores coverage for that removes it from its auto exclusion well but then you going back to essentially right now let let's assume that this was not insurance company versus insurance company and it's insurance company versus insured it's going to be construed against the insurance company that language in the in the insurance policy that says you're covering maintenance of an auto and an auto includes equipment that's attached to it i think then the natural reading of that if you can student favor of new would be well you said you cover maintenance right i think the difficulty in this case arises because the two of you are are arguing kind of against each other and the language of both policies appear to be covering what happened in this case going back to judge callahan's question can we then say in maintaining this audio which is covered by national mr clark was operating equipment that referred to a false dichotomy that was created in the result in the case and that's the false to economy of saying it has to be either maintenance or operation of the pump no it's a the auto policy covers maitland's of an auto but it has the exclusion for operation of specialized equipment attached to the auto and this is that's the question is this conduct part of maintenance which the district court concluded that it was part of maintenance because it's in the process of maintaining it he's testing to see if it works he's not a person who he was basically hired to sprayed tar for  purposes that's what's contemplated in the exclusion you can't you're not going to cover it if you operate the quitman and then somebody gets injured but will cover it if you are in the process of maintaining a repairing right and i think the again it goes back to understanding how an exclusion works and a policy and exclusion removes something coverage for something that otherwise would be included there is an intersection an as an insurance company that can never happen if there are two insurance companies there can be no intersection ever i think that the way the policy is in this policy i know what you're saying here can there be a situation where but let's say they don't write it right so that's how insurance companies intend to write it but is it possible that with their loose language that's there can be an intersection with the policy language we have in these cases these are your i'm not asking you in this case i am saying how pathetically can there be yes a situation where two insurance policies have an intersection of coverage of course because if you are saying different policies different language it all depends on the language in the policy so hypothetically there could be different types of policies and when there is an intersection of coverage but the insurance companies do how do they decide how they parse that out they can agree that they both have some coverage right and then they out well are settled the case and perhaps with the court is suggesting is can there ever be a situation where two different types of policies cover a loss and i think the partridge case is an illustration of that and that's where of the exception in exclusion and i'm talking about the c g policy now the district court did not want to apply the exception in the exclusionary store's coverage otherwise removed by the exclusion for the operation of pump and spraying equipment because the court reasoned that it would have this charade the auto exclusion in the policy and i think that illustrates exactly how that would be within it for example if the engine were being worked on if the carburetor or whatever the only thing that is within that exception is when maintenance occurs if it involves if it involves the operation of the pump and spring equipment then that's going to be within that exception in the exclusion that says our auto exclusion does not apply to operation of and spray equipment attached to the vehicle and now it makes perfect sense and sound policy is insuring risk associated with the business with the operation of the specialized equipment thank you ago and tie back to this case i'd like to tie into this specific facts of this case as your daughter's pointed out if the truck is driving down the street and tips over and something happens involving the equipment that plainly is not a rise out of the operation of the pump and in this case it's that's a little more extreme but this this case the same conclusion applies because when we look at what was happening here this repairman what he actually do he came he well did the cover of the pump motor the pump was not pumping it was not spraying so he welded the cover he looked like it was ready to go he did was have stipulated facts he did not engage the pump what he did was he turned the pump motor on to see if it was operational well what he should have done is he should have made the guy that repaired it check and let him get third degree burns that's why we have stretches that so we know we should have job right he was not operating the pump in that sense and i'll even go this far this is not a question of maintenance versus operation it is conceivable that in the course of maintenance repair work you could be operating the equipment that's possible that's not this case because he was not in any way operating the pump he covered the top checked it and he pushed the button to see if it would work so in math since this is not that far removed from the case of driving the truck down the road in and something falls off this is not an exclusion for the running the pump or bumping into the pump or having the pump off its operation now if the truck with the pump fixed if you drove it to a job site and you parked it and then the person operated the pump and was insured with that entry be covered by landmarks policy it could be  sitting in in the hypothetical i gave you the cost not operating and you stop at a job and you're operating the pump and doing the job and you and you want don't want to say it would be covered you want to say it could be covered you said you're operating now here's what thought i wrote it down so i'm going to repeat it again i'll give you a second chance if a truck with a pump affixed to it drove to a job site and parked and a person then operated the pump and was injured with that entry be covered by landmarks dictionary that finishing up operate means to close the function some going back to your explanation of what happened here when he pushed the button he caused it to function that's operational in the meaning of the language of the policy no i would disagree with that because operation the in common parlance means putting its two is intended use its function checking it to see if it will turn on if it will work is not part of operation that's why you're the other example here where your honor said if you go to it doesn't necessarily have to be at a job site in use although that's a clear example but if you are in the repair shop and you're just checking it with a repairman who has nothing to do with pumping concrete or asphalt onto roofs that's not what he does he's not connected with that now again if we stretch out we're in hypothetical land if during the course of the maintenance repair he had to run it for a while and pump concrete and asphalt to see if it was working that might be different but we're confined to what actually happened with the stipulated facts he did not engage the pump he it was not part of operation so operation means something more than turning on or running or checking so let mrs let me understand he welded something and it had nothing to do with the operations of the power or the maintenance of the pump just welded to the son of the machine and then he decided to turn the pump on for what reason we have no idea so he really wasn't doing maintenance then because he didn't he didn't do anything to repair the pump correct no he was called out and then that that's your main and exclusion we would maintenance right with the car back for operations in the course ok so i'm going to ask you this question what if we decide that neither one of you has a liability and you've already paid the money for the settlement of the case you're both i'll look great first of all i want to thank both of you for deciding to settle the underlying case and split the difference i think that's very professional ok and your company should be proud of that but maybe you both lose i don't think that's the outcome but i understand the point and i would like to but mike i asked you a question i didn't finish it so what happens if we find both neither of you have liability then what happens are you going to sue somebody else something we have any one else i don't think so we've got both take our losses in that scenario whatever the correct terminology is but he just pushes that button that's part of operation there on the job site right he's pushing the button for its intended function job but then but then for this situation somebody out to repair it they push them very same button and there's no liability exact same conduct but liability in one instance no liability in the other is that your hypothetical i don't accept that because within the context of operations that's what the their exclusions for operations are car back is for operations is again it's not for running testing those kinds of things so we have to look at the context ultimately what's happening and so if you have someone who is going to operate it and because he pressed the button and they didn't have the proper cover on the top so at the end that's why i think the district court was correct to conclude that when you look at these particular facts this person doing what he did this i think that the discussion of the hypotheticals that you just engaged in with landmark's counsel really illustrate what's wrong with the result in this case and that is indisputable e mr clarke was injured because he turned on the p operation and means functioning the pump engaged and speared tar out of it there was injury arising out of operation of the poem and what the hypotheticals illustrate is that instead of and if there are exclusion overrides otherwise coverage just like your argument and even any coverage either the exception restorers the coverage that is otherwise excluded from maitland's under the landmark policy and through negligence whatever doesn't check that it's disengaged of the spring equipment and he gets sprayed what council said if he had done that and had to see that it was operating for a certain amount of time then it would be an exception as this is the way it looks on the printed page this in the landmark policy this policy does not cover maintenance but this exclusion does not apply to injury arising out of the operation of writing let me just read you what the district court said because the district court was it took state in this case she tethered her analysis to the stipulated facts in concluding that it was maintenance and she said as set forth in the parties joint c p l ation after completing his repairs clarke told the start or deceive the tars in the tank was hot enough i'm skipping a few words here in the interest of time but he did it to check to see if it was secure and operational the only reasonable inference is that clarke was injured while performing a maintenance role this conclusion is further supported by be complete absence of evidence thing that clark had been ten ability or permission to operate the fort tanker for any maintenance really purposes so it doesn't really help to go back to the policy language in a way because the understood the policy language but she found that the scope of his conduct fell within maintenance and i think that's a misapprehension of how an exception to an exclusion works in a policy and a reading in terms that are not in that exclusion policy i kind of think that what this really comes down to is the person that got these policies really intended to cover this sort of activity and maybe the insurance companies could do a little better job writing things there is always room for improvement i suppose well i think this is an example where there could be some improvement i think or an over time unless either of my colleagues have any questions thank you thank you both for your argument this matter will stand submitted