vicarious liability statute so as far back as eight hundred seventy two in california it was being written there was reflection that there's a possibility that there may be situations where employers are required to employ a certain some of your arguments is how do we cabin or limit the concurrent proximate causes of an accident under your interpretation of the contract but i mean let me give you you know i mean obviously because when you ask someone to do something you say go there you can't just you know completely get the exclusion what if the boss yelled at the employee in the morning and got the employee upset or what if the boss medium placed up really late the night before and worked  was not a rehab program the employer was not required by law to employ that employee the same would apply in this situation if mr sears had never tested positive for drugs had never been pulled from the front from driving driving and had her this accident this case wouldn't be here and possibly it would they because there may be a slight distinction between the use of alcohol which is legal and the illegal use of drugs but what distinguishes this case is that mr c s despite his addiction to drugs never had an accident before he was caught and when when he was caught caught through the drug testing process he was suspended and removed from from his dirty in private and he was moved when he was accommodated by being moved to another position in the company and the accommodation was required by law by the a d a s result of the fact that mr c as well as a sophisticated enough to immediately request that he be moved indicate that he had a problem and indicated that he wanted to go to rehab and he paid for the rehab and it wouldn't take he wouldn't take any time away from his employment he would do all these things this sounds like employee on the job who because of his drug addiction if he falls off the wagon is a loaded gun you know factor hair trigger so no matter what he  arm player could it be the cause of a lot of the reason some are not careful because they stress the sound because they make us work too hard on those things i just don't see how the audio exclusion could ever have any meaning if we accept but what you're saying well was in this case it was a disability and it was a disability associated with addiction to drugs so if drugs were not involved in the accident then this case the c g our policy would not provide coverage the only reason t provides coverage in this particular case is because what congress has it has required thing employer to do over here which is a non auto not auto cost mr spears could hurt someone at work it could hurt hurt someone that's not really exception but this rule which follows partridge should be applicable but it is applicable to a very narrow situation where the combination the preference that you're giving to people with disabilities don't but let's assume that he was under the influence of alcohol at the time not greg's and was involved in this accident would you be arguing that the exclusion did not apply  i would i can't answer that one might answer that question would be dependent upon has he had an alcohol related problem at work could be a driving or not driving had he the same bag it's just difficult to answer the hypothetical question with respect to alcohol when in this case it was drugs there was a prehistory of drug use he was tested like like the employer does ok but there's not a ad used drugs and then using drugs for years but the employer didn't know about it and this accident occurred you wouldn't be arguing for an exclusion under those that the exclusion didn't apply under those circumstances that is correct information available suggesting that he had addressed and resolved his drug problem and so reinstated him to drive under those circumstances the the employer doesn't get the benefit of this provision because of the not required to put him back as a driver they're having a hard to keep him the distinction here is that the that the reason that you can't disassociate the vehicle use from the cause of the accident is because that exact reason your honor the company didn't have to put him behind the wheel of a truck they just had to give him a job and once that they put him behind the wheel of a truck truck ok maybe that's alleged negligent entrustment but there are several cases that say negligent entrustment of a vehicle can't be disassociated from the use of the vehicle therefore the auto exclusion applies another thing that i think is important to keep in mind here a lot of the appellant's argument i think is i theoretical in a vacuum it's important to keep in mind the specific facts of this case and the purpose of their overall portfolio of insurance this isn't a case where the injured folks went uncompensated they had a million dollars of coverage under an auto policy that clearly applied they had three million dollars of coverage under an umbrella policy that apply right it's just when you're a doctor and if you're making a lot of money for  user is not part of the chain of causation it's not part of the chain of causation that's relevant to the insurance inquiry or not that's not my question the question is of the sort because partridge in the part of the analysis was to look to see whether or not there could have been a separate liability in fact in that case they were trying to do the sense they were trying to be done here except the flip side right so the question is that i'm trying to is now it's too remote to be part of the chain of causation of the accident if there were a court order that had been litigated and put and the company didn't want to put him back on the payroll more litigator than so they have to do it has to be a reasonable accommodation so it was under compulsion of law the paper out of back on with it make a difference i don't believe so your honor because we're still talking about at the end of the day the interpretation of a written contract and thought answering the question that's now you're talking about the facts i'm asking about the chain of causation of the accident just when you don't know you don't even get to any of this analysis until you have some kind of linkage between the the and the events that led up to it that are in the chain of causation and understand that there's a contract the nelspruit superimposes of self but i'm trying to understand just because counsel for the company is arguing directly answer the question i really intended to the concordant causation analysis of the cases following partridge flows through the prism of the policy annex the expectations of the parties so from a strictly tort standpoint i would answer your question as you know perhaps the court's order was a causation theoretically is that a proximate cause is it sufficiently associated with the use of the vehicle in that in that chain i'm not sure that the answer to that question would necessarily resolve the coverage question whether or not a court order requiring  concrete cause your honor i believe has to flow through proximate proximate it's part of the proximate cause of action so no i would still say that a court order ordering them to put him behind the wheel might be part of the theoretical process because i think there may be a question as to what was the greatest cause here but to me there is no doubt that can that that the employers fail to failure to terminate the employee after he tested positive for drugs and his dessert decision to comply with the a t f so that he did not generate a discrimination claim by the employer employee against the employer for failing to accommodate him when he admitted his drug use said he would go to rehab and then was suspended from driving for a year  es not just because of the passage of time make this event that occurred probably a little over a year and a half before the before the accident not the real what i would consider  proximate cause i sorry i need to take that back the real proximate cause of this accident was mr c is use approx this which is an intent illegal drugs which is an intentional act if we're looking for a secondary proximate it is the use of drugs ok now you have a drug risk person on the job maybe a under your analysis is responsible for the employer decision to put him on the job is a policy reason or a reason way it did except he was on the job not because of the d n a but because of their voluntary independent driven decision making process those there's your reading of the exception to the exclusion thing because of the i think the exclusion would apply and and in this factual pattern he was hired and tested and did not test positive for drugs when he was hired and so if he had had an applicable was the fact that once he was discovered the employer there and complying with eighty eight and the other acts in california attempted to accommodate him the other issue with respect to that that was raised to is one of the remand atory requirement that the employer put put mr c s back into a driving position and the answer is yes the accommodation requires you to accommodate the employer and if possible put him back in the position now we're dealing with the driver so there are a lot of rules out there and and not only was p v c in this case looking for some type of standard out there but also in the u p s cases case it's been deals with drugs but from the employer's perspective he's out there looking for ok no worse there was standard in our situation with respect to drugs and alcohol that has a set a standard it's one year it's a one year suspension and then one year period the employer again then being the statutes specific law and then looking at dot regulations as to how but it deals with drivers who have been discovered they have to be on drugs or alcohol to to go back into the vehicle and in fact that has a secondary thing with regard to discrimination they have a ten year will if you if you go get back in the vehicle and you test positive again some subsequent date whether or not you have been to rehab and there's a relapse or as occurred in this case i don't believe that mr stevens was ever a rehab i believe that he had this mechanism where he was able to circumvent the testing system and as a result the and whatever number of test occurred after he tested positive were all probably false test because of his use of the violin and this this intentional means of trying to circumvent circumvent cvs the other thing is important here is the concept of discrimination and the current concept of preferential treatment eighty eight does require preferential treatment and and and it's an interesting concept with the policy is trying to superimpose that in terms of tort law insurance law in california and then one last item intentional towards when looking at causation and intentional