ensured bodily injury on his place of business whether that one million dollars policy provides coverage for mary armbruster i'd want to deal with the first issue first as to there was a resolution that i'm not a final resolution but there was a rare resolution issued in which the parties agreed that mary armbruster was  a temporary agricultural worker but the comp carrier agreed to pay a substantial amount of money with that agreement so she wasn't found to be an employee the mr wall and has their hands all over the worker's comp case arguing that she's an employee and therefore would help in this case and also would help in the underlying litigation because it would get rid of the circuit court action if if she's covered by cop wall has filed an appeal from the arguing that the parties should have been allowed to reach a determination between themselves that she was an agricultural worker and even though money would be paid under the that employed by western world remain a represented in the in the corner they remain a representative well i mean we're arguing that they don't even have standing to argue that because  does this western world think that well i don't know that you can tell us what western world is but this it is a concern that in some why the agreement of those two parties would ban them or that some quarter be influenced by their factual agreement presumably i mean i assume that's why they're on that's why they've always tried to keep the case out of judge shelton's hands on the competition i mean there are going jurisdiction on that issue well you know back to the back to the jurisdictional issue i'm skint can i tell you what's on my mind and maybe you can address this through will attempt to address this in your you know argument you know i've been a judge for a very long time post and studied in federal court and this case appears to me just to be the garden variety sort of case in which district judges tuesday says jurisdiction every single day and the question of jurisdiction is rarely if ever read these and we may have all this grand trunk authority out there but this is just this is what the district court did in this case is what happens routinely assume jurisdiction and i'm just eyeball to discern anything inherent in this particular case or in the relationship between the federal and state courts that really argue strongly for that be having been an abus discretion and i'd appreciate it if you discuss that in your argument i think that there have been i mean if you look at all the cases starting with miranda and there have been very few published decision by by this court i what it is about this case that takes it out of the what ordinarily happens well i think that this case is very similar to by by two minutes the issue here is what the status ho we and we're not going to defend him and we're going to bank everything on the sixth circuit i could understand there but there they are litigating this case whole hawg all over the place on the employment status of marion ar well this is a little different but we're arguing about the employment status here versus the employment status on the comp i don't think it is they're trying to defend it so all over the place so they don't have to pay now there's no other case like that in the  court judge shelton ruled that she was a temporary agricultural worker he would on that and after he'd heard mary armbruster testify for two hours and after he'd heard burrowing to tell is not the cop but he was the circuit judge and they didn't want this case in front of him that's why i find it when is that in the context of the cop because i thought you told us earlier that it was the agreement of the party that he was a temporary agricultural no it was also they also didn't want a judge they didn't file a motion well i filed a motion to strike their comp defense in the circuit court i did that because issue because he did have jurisdiction to do so western world's attorneys then filed i mean the western world actually filed the comp claim for my client she didn't want the judge shelton ruled that he was the temporary agricultural worker or did the parties agree no he ruled that way and then they fight when they filed an appeal to the court of appeals and the court of appeals reversed on he makes that decision the appellate court reverses him and says no work your way through calm and rather than your client doing that someone else western world representative came in and  undertook that correct all right so i think where we're all headed is that both of you want someone to make this determination you want the state court to make it they want the district court to make it what is your best argument for why only the state court can make that determination i believe under the under the under the five factors of grand trunk and even under scots and even scottsdale which i believe that the decision was dictabelt i mean when you look at by two minutes and travelers they come in in two thousand and four two thousand and seven scottsdale comes in two thousand and eight scottsdale decision was dicta but even if it isn't if you look at scottsdale they don't say that we're always going to use this one on parts one and two of the grand trunk argument that we're always going to use this one i would say part of an argument which is in scottsdale the only issue is a legal issue determination her legal status becomes a factual issue if the record is clear how she worked who she was hired both factual issues are on the record but now it's a legal decision but i'm not sure that they that they continue to argue that she is a mere employee which is what judge cook found judge cook found that that she can't be that that she can't be a seasonal a worker which judge shelton found that she was now if that's merely a if there's merely a legal decision then i think the judge shelton is in a much better position to make that unable to look provisions visions in an insurance policy and construe what the word employer employee mean what those words mean in the context of it insurance policy think we never saw that kind of problem before now i think you have i think you i think you have but but there's also the issue of there was procedural fencing in this case i am on that yes of course there is this so i m situation where a blameless party invokes that against another party well judge demi judge who found that there was not i mean if there was procedural fencing in the factor's three four and five certainly favor the pla understanding is that it is but i do want to clarify that western world did not in its own name file any state court claims and is not a party to any of the state court actions the only action western world is in a party to a named party to is this one your questions about whether it has an obligation to defend and state court correct and it is defending under reservation of rights as it is appropriate for it to do and that's one of the reasons why we feel it's important to have this issue decided and resolved so that western world is not obligated to continue provided defense where it is not no obligation to do so what is the basis  believe that it was my my belief is that it was determined that workers compensation was the appropriate venue to determine her employment status because the state case unlike in this coverage dispute in the state case her employment status has to be defined within the context of the worker's compensation act well understand what your position is under struggling with the fact that we were appears to be an agreed resolution by the actual people involved i guess you would have to call one of them your client because fully cognizant of the most recent developments in the workers complications my understanding in terms of my discussion with the attorneys in that case was that there was a settlement agreed to right to not accept it now what papers were signed or not signed i don't know and i don't know in terms of the workers can say what their mr hoyer is opposing it or not but i believe that the appeal was because it was believed that the settlement didn't properly well it really doesn't matter what the appeal is for my question to you is how do you have if in fact you wanting to represent someone in that action your insurance company paid to represent someone in that action and that someone settled the case i guess what i'm struggling to understand how you could go on because you don't have a right to act in your own interest which is what it appears so are we back to proceed rural fencing again i don't think so and let me let me just say this the  i believe part of the reason that it was appealed has to do with the fact that the state court personal injury action is held in abeyance pending a determination of her employment status  ambushes employment status in worker's compensation case now if that case is settled there is no determination as to her employment stance where they've agreed upon it or not in workers compensation case doesn't doesn't doesn't resolve the stake or personal injury action i think that's probably part of the reason why it's been i'm totally confused about western world has appeal could not a party which is what i understood to be said earlier but let me i want to back up and ask you about something else connected with that and then maybe we can return to that whether is an employee under state law and whether in workers comp the exclusive remedy against her employer that will be determined according to state law correct whatever the state law because she can is correct this case the ultimate determination is whether he's an employee under the terms of the contract we might look to michigan law to help interpret the contraire but base you know probably the governor of michigan law but those two the answer to those two questions is not but not only that it is the temporary cultural worker what is the remedy does the temporary agricultural worker is the exclusive remedy against the carrier or the the employer or is that worker not entitle to workers come but they just agreed to give it you would get a payment any why what's the import of that i believe that  the implications and i am not the cut the attorney representing the workers comp issues in terms of the state corporate person action but i believe that there are implications for whether or not the employer is your part to have workers conservation coverage for a seasonal agricultural worker or not so he may be personally liable verses his workers compensation coverage already if you won the workers compensation by the position that you are taking that western world's attorney if taking in you would turn around in this cause of action and say that employees covered by worker's comp we're done right no that's not correct so you're you're telling me that you would fight to have workers compensation this is a work comp covered injury and you would not then use that to say which automatically means it cannot be covered by our policy under the terms of our policy for purposes of coverage under this policy i don't think it matters what her employment status was her employment status under the policy she is excluded from coverage whether she is an employee or a temporary worker as defined in the policy which is not a seasonal agricultural worker is a temporary worker or if she's an independent contractor and those are the only three statuses she can have there is no sir understand other status within the context of applying the terms of this insurance policy that she could be there is no fourth category for temporary agricultural worker or so that you feel they are a category that we do not cover workers compensation covered employees in the policy isn't there a work comp exemption there i believe there is a reference possibly under the medical payments provision which is coverage c but not under the main coverage a provision but the three exclusions that are primarily discussed in  my brief are applicable under both provisions but i think there is a reference in coverage see medical payments to too soon to know but that would be additional in addition to the other  attorney to to bring an action in the workers compensation a ring i can't speak specifically to that because i'm not the attorney that was employed to do that well you're the i believe you feel for the company that employed somebody to bring that cause of action and are you telling me that you don't know why the company brought the cause of action because frankly calculate things pretty obvious that that cause of action was brought for the purpose of tiny a ruling that this woman was covered by workers compensation and in bat instance is then there for no longer covered by your insurance policy why else would you spend your money to bring that cause of action under reservation rights in the state court personal injury action i asserted workers comp exclusive remedy and they determined for purposes of their strategy that it was more appropriate to have the worker's comp agency make a determination as to her employment status and i believe that was the reason that they were everything changed to pursue i'm sorry i don't want to interrupt  world saw being a volunteer essentially in the workers comp base in the ret frankly a rather odd position for western world to put it if that's indeed what happened to hear you tell him if he did but it seems like the dali interest western world would have been being involved in the case is if it somehow thought that the resolution of the would help it extricate itself sooner rather than later from defending the case under reservation of rye in other words just let's move this along in whatever venue we can move it along i'm not sure about that last statement but i believe that whether it's a federal bin you or whether it's extricating ourselves from defense in the state court action through the vehicle of helping out with the worker's comp case it seems to me that that's the only thing strategically that makes any sense to me in reference to western world but again i will say that in the world wouldn't have any real interest in involving itself in the workers it would in its efforts to defend birkhoff i from essentially from the stake or personal injury action because they want the determination of workers regarding employment status if she's found to be an employe in workers comp then and that workers can apply and that's ultimately what the issue is and there is that work sample plies then exclusive remedy applies and a personal injury suit goes away but but in terms of liability coverage we have to defend under this western world is not an actual party in any state court cases western world is entitled to choose its form when it went files declaratory action which is which is what it did what you and that particular policy didn't have exclusions for any employment status whether it was employee temporary worker or independent contractor which ours does so the the factual determination  weather would settle the controversy between the parties or the clarify legal relations between the parties that's those are the things that that were part of what was discussed in my two minutes is that the underlying  your honor i think the key and judge grants asked again about what's going on with the comp cases hoeing reached a settlement contrary to what western world wanted and western world taking in people from that i have the where they're coming from in the reason they did so as you hit it you had it on the head if they win in comp this case goes away if they win in comp a certainly would if they were still an insurance issue because the circuit court action would go away but if there was they would certainly trumpet to this court that the co purposes but i suppose it could help if we when but he could only help if you have actually exercised coverage of that employee in your declaration and worker's comp correct right and what it could do if he could leave you remedy less correct now let me ask you this is this the western world policies of the general commercial liability policy were right and that generally is designed to cover patrons injured at the business not employees so i gather that's what you're trying to say wait though but she's not your clients not an employee we were arguing that she is not an employee that she was a temporary worker temporary worker it was paid by cash that was paid and you know that they don't define what an employee is they leave it up to general michigan last post well they don't say that i mean well they don't define what an employee is well but if it's not a five don't you look to the of the state of michigan would i guess i guess my question is the one that i raise in the brief is why don't they just say that if they're going to say that they're not going to cover anybody that has anything to do with helping  serviceman then why do they have this employee independent contractor temporary worker i mean i think what happened was is that there used to be policies with a temporary worker that if they were in that temporary workers were not covered so somehow they changed their language to say that temporary workers i mean excuse me the temporary workers were covered and now they change the language to say that temporary workers are are not cover but but my argument is is that particularly in view of the fact that michigan law says that if the evidence of the status of a party is recently susceptible of a single inference that's a question of law but if it's if it's a  that exclusionary clause which is supposed to exclude people to just temporary workers who are furnished as opposed to marry arm who short the contract that didn't and what they are out of the district court by the district court correct correct so what do we care what he thought mean that here that he thinks that maybe big she was a temporary worker and if you say well if if the only temporary workers are those that are furnished because now you want to read that you want to read that exclusion you you have to read that expelled in the middle and it's a minute shelton's at mc we've probably clauses metal more minimalist or i mean is as tightly as it's written but then one step but then wants to expand on what employees when even though it's not defined why not do it the opposite way the question becomes what you have that in order to define employee is it your position that you would have to lift each kind of category in order to ninety minutes an employee or  do you not find that you then either turn to the definitions under michigan law or the dictionary definitions in order to determine what and who is an employee but you could you  could in each case say that this is to be determined in a michigan law you could say that i don't think you'd have to say you know try to figure out every possible person that would be an employee and if it's determined under michigan law wouldn't  your client be considered an employ if it is determined under michigan law yes i would say this yes all right we appreciate the argument that it will consider the case clear and i think everything else