oh november thirteenth two thousand and thirteen global waste employee marlin dig drove a mack truck approaching the toll plaza on beltway eight in houston  he never applied his brakes he struck a toyota excuse me a honda accord drug into the attenuation barrels then struck a dodge charger after striking the dodge charger he fell out of the truck and the truck continued on with the charger for it ran into a wall resulting in a fire and in the death of the occupant of the dodge charger now the question before the court today and there really is only one is whether or not that scenario that we just described  issue here in this case today i'm just wondering did the company ever do an autopsy on the fellow they did the the question was what was happening to mr dix are they for the autopsy i believe there was one but they could not find where the noddy had a heart attack a stroke or some other physical problem and that was never again a fight in the mix in the underlying case or in the coverage case but for whatever reason he never applied the brakes and bodily injury or property damage the other relevant portion of the policy is the limit of insurance provision and the limit of insurance provision states that regardless of the number of vehicles involved and i'm paraphrasing and the accident the most that because it will pay for any one accident is one million dollars this limit of insurance provision further states that all bodily injury property damage resulting from a continuous or repeated exposure to substantially the same condition will be considered as resulting from one accident now the question as to how many accidents are depends upon the test you apply in the united states to research the test currently that are out there the cost test the effects test and the unfortunate advance test toda texas the courts of plying texas law have applied the cost test now let me preface that by saying the texas supreme court has never had this issue before them well the question you know put more pointed relocate reloaded but the senate tonio called appeals said no that basically each they said a new occurrence did not result each time the insured returned to the air after landing the plane to reload it with purpose set rather each pass resulted in the creation of the same general conditions of what the court there said was it was the process of crop testing the damage to all the surrounding landowners property it was that act that process of that of the event that resulted in the damage and we're not going to subdivided as far as each pass on each wrote reload we've got that now their clients and we had birds dropping like crazy all over the united states and the question was how many different occurrences were there and what this court said is we're going to look at the defendants conda not at the number of dead birds that we have but we're looking at the defendants conduct because the liability and this court said it was the sale of contaminated bird seed that resulted in more recent pin coughs liability and if we look again at the conduct of the defendant not the effects because we don't have follow the effects test then there were eight separate accidents or eight separate occurrences from that case but again we're looking at it from the insurance point of view what gave rise to the legal liability we've cited the h p but case which was eighty but employee molesting two children on separate occasions and the question and replaced by another intervening cause the chain of causation is broken and more then one occurrence has taken place and so it least that case the court was looking was already dead already incapacitated and it was driverless the whole time it seems me that one of the problems of all these tests is not really knowing what happened and i would agree that we track what happened from the from the  but the big question the question is this we know there was erratic driving where there was medically induced sleep induced whatever and we know that there was no application of brakes and that there was erratic would you have stepped back a day i take it that they must have settled the first two claims the doctor for him and the ford f one fifty within the policy limit so they weren't calling on your client at that point when we  primary we settle some property damage claims earlier and then for the the honda case we paid nine hundred sixty thousand something like that and then the remainder was paid but ever since we paid about thirty eight thousand or so  tollbooth and some property damage claims also when we get the accord there were some material debris that fell off and hit another car as well so there were some about thirty eight thousand dollars in property damage claims that were paid and then we paid the remainder of our limits the nine sixty two toward the occupant of the honda the rest of it was paid by evanston within their limits we have cited to the court clause is to be construed on the basis of the claim of the accident rather than its effect on the cause of the accident rather than its effect and this is stephen who's editing a crash and how he says such courts consequently hold that were one proximate uninterrupted and continuing cause results in injuries to more than one person or damage to more than one adam a property there is a single accident or a set of parents within the meaning of the per accident clause in the liability insurance policy women team the insurers liability to a certain amount for each accident or curtains and you look at the cases that are coming down recently and we've  some more recent ones one is a two ten two thousand and ten georgia supreme court case which was certified from the federal system to the georgia supreme court and that was a automobile hit two two separate collisions within twenty feet a second apart the cyclists were arguing with this was two separate occurrences since there were two separate collisions the georgia supreme court said look this policy doesn't even accident but it has the same limit of liability section that the mid continent policy and the court said if you were to treat this as two separate incidents or two separate accidents you would render that provision meaningless and they said the only way to interpret this policy is the whole that again if you should strike two separate vehicles bicycles whatever and a continuous action it has to be one accident we also cited a case from two years ago just vs farmers auto insurance out of iowa supreme court who was not certified but it was a case where an s u v was driving on the wrong side of a road and got hit by a tractor trailer the s u v was disabled and a few seconds later in motorcycle came up and hit it injuring the motorcycle driver the motorcycle driver argued well this is really two separate occurrences our supreme court in that case said no the undisputed facts do not reveal any intervening or superseding cause both impacts resulted from an unbroken collisions were closely related in space and time and traced their origin to a single cause which is exactly the case that we believe we have here i mean let me step back and try to ask my question a little more carefully did you as the primary carrier treat the two previous collisions on the freeway as a separate accident from the series of problems at the toll plaza originally your honor we did we treat them as the same one later on when we were in this litigation a decision that was the risk the gardner collision that occurred five minutes before us there was the garcia disc a collision that occurred two minutes before the tollbooth episode the decision was made that we're not going to challenge that that they were too far removed too far too remote five minutes earlier wrong well the question is in some of the cases for example the ross decision from this court applying for the law one of the things the court looked at was did the driver regain control at any point during the process now it's a florida  decision and the court this court said under florida law that there was an inference that the driver had regained control and because he had regained control then it was two different accidents and we the decision was made just not to make those an issue not to challenge it but to challenge the ones that were up here at the tollway what we knew what happened where there was an accident reconstruction by the police officer where they went in and we that there was no application of brakes and it was no skid marks and that this was an uninterrupted intervening chain we couldn't really say what happened over again regain control that you're thinking nearly hit those two cars w speculation on our part because of the fact that mr diggs unfortunately was not allowed into questions the first two were a lot smaller day they were no question about it they were sideswipe  counsel for mid continent in their opening argument and that is what is the relationship with between the collisions that occurred at the toll plaza and the the first two collisions that occurred two minutes and five minutes they were remote in time and distance from the the accidents of the toll plaza but they can't run from their admission that those earlier accidents were separate accidents because simply because they were more remote in time and distance because under the case is always been the failure to spin control speed was the cause of all of the collisions in this case and so if that's that if that's true then these earlier collisions that were very remote in time and distance would be part of all the access that occurred at the toll plaza because they resulted from the same alleged overarching cause so their position that they take the respect of the earlier acts and simply conflicts with the test that they're asking this court to adopt with respect to plaza now we agree that the sailing question before this court indeed the only question before this court today's appeal is whether the collision between the insureds truck and the williams car and the clifton between the insurer truck insurance truck case as well as the u a e texas one case now under the cars test all the course of the parties agree that the test is that it defines an accident as the specific event that caused the injuries  question and gave rise to the insurers liability that is the specific formulation of the test that the district court adopted that as a specific formulation the test that this court has adopted it is also the specific formulation the test that both parties in this case of doctors including mid continent this case is a really the parties don't agree on what the governing test is instead also argues against the need to certify this issue to the supreme court however where the parties is what exactly is this cause test and how is it applied under the facts of this case the position that they want you to adopt is that it is the overarching cause of the accident that is relevant in determining how many accidents and occurrences are on an insurance policy question however the overwhelming precedent from this court that this court would have to reverse or set aside or distinguish actually holds that it is the number of injurious contacts between the insurance vehicle and another vehicle or object and this is confirmed by the holdings in a number of cases from this court this court asked  by the same employee of the insured store constituted two occurrences even though the alleged overarching cause of the injuries in question was insurance negligence and hiring retaining and supervising the employee in question however under the overarching cause test adopted by a spouse by mid continent that would have been only one accident of this court held that there were two  but in several cases all discussed in a minute establish that the amount of time between the collisions is not really relevant what is relevant is that there was any time in the distance separation between the two collisions because it establishes that they were because you do have the interruption in the activities and things that could have changed the course of what was happening in seems like the situation here is as far as we know it was going on nothing could have changed the course almost literally what was happening with that mack truck rush understand you are but i respectfully submit that the h p decision was not decided based on the temporal separation between the two incidents of sexual assault that occurred store instead with this court looked at and determining that b to separate occurrences was that each occurrence resulted in different n g s and lead to different liabilities to the insured store much like in this case where we had to collisions or even if they may have occurred within a closer temporal and distance proximity they still gave rise to different injuries to different persons and gave rise to different liabilities to the insured with company a to b also involves though the motives and in that motives the intent of the actor and he to form the intent to commit each of those assault at separate times and that's the interruption part is well known it is is it is not a clean fit i hope you would at least acknowledge that into this physical in the h e b sure yes your honor again i respectfully submit that that was not the basis that court relied on it being ordered termine that they were separate occurrences maybe might help if i can point to a couple other cases that are maybe closer on point to the specific facts in this case and that is the spars the decision of the eastern district of texas that case is virtually on all fours with the facts in this case in the sense that they evolved substantively identical insurance policy provisions and language but in the a spars a case that involved a situation where the insured car crossed over center line hit one car and then went off went down the road for a further distance and hit another car the single act of crop dusting the particular field in question and even though it did involve multiple passes over the field the court actually said that those multiple passes were still nevertheless the result of one actual procedure of  the application process constitute a single procedure and it's this procedure as a whole that caused the damage to be the cotton crop and that's on page three thirty five that decision and so in that case the court concluded there was simply one injurious act by the insured and therefore there's only one occurrence here there's no dispute that there were multiple injurious acts of contact between the insurers vehicle and the williams car in the past on the other hand so there are two distinct collisions in this case whereas and the fast case there was simply one act of dust in the crop berrington case was a case that involved a scenario where an apartment complex consisting of multiple buildings suffered damage to a number of those buildings due to pipe leaks underneath each of those buildings the question for the court in that case is the question before the court in this case and that was how many occurrences were there under the policy in question this court concluded that the number of occurrences was the number of buildings that was damaged by the pipe leaks even though the alleged overarching cause of this pipe leaks was the allegedly negligent installation of the pipes underneath the building in the first place so if this court had adopted overarching tests by me continent they would have concluded that there was only one occurrence but the court concluded that there were multiple concurrences and significantly they base that decision on a decision by the first eastern first district court of appeals in a case called on the same day and it's significant because in that case the houston court of appeals concluded that there were two incidents or two occurrences under the insurance policy question rather than one even though there was evidence in an allegation that both fires were caused by the same person the arsonist in question the course that's simply immaterial whether the same person caused both fires because the bottom line is that there were two fires that caused two distinct injuries to two different schools cause the other one fire spreading to the other question ok so your reluctance to have us look at time as being relevant here doesn't seem supported by at least that analysis the time is a factor yes and i think it was an h g v but we'll have to decide that correct it should be noted the fires occurred to believe on the same day within an hour or two of each other and so they were in closer temporal proximity than the b case but in addition to the sparge case i don't mention where the eastern district found that there were multiple accidents or occurrences even though the collisions occurred almost simultaneously there's another says you can point to in that the case that was also the case decided by this court i believe it was in one nine hundred sixty nine now conceivably in that case this court was applying florida law but there was no indication that florida law applied a different test in the again if this court applied the overarching cost has been a con and they would have concluded that there was only one accident or occurrence based on the insurance alleged negligent driving during the police chase but they did not let me read you one more point passage from this court's texas one case to confirm that this court has rejected the specific test that mid continent asked this court to apply in this case this court stated goose creek instructs us not to look to any overarching cause but rather to focus on the event that gave rise to farm and funds liability under the policy for example in greece crete because the court did not look to the existence of a single arsonist but rather to the number of fires that cause the buildings to league was responsible for the damage to each building and as such we agree with the district court that each leak constitutes a separate occurrence as a matter of law and this is important not only because it rejects the overarching test but to go back to the point that just whether there were separate events that caused different injuries and gave rise to different liabilities of then i can't resist i think you're nearing the end of your presentation and i can't resist asking you the obvious question which is what do you do in a chain one injury is contact between the insured insured vehicle and all the other collisions and all the other damage the other vehicles resulted from that one could then if as a result of that first rear end the car that perpetrated it slides over into the other lane and hits another one then that's a separate accident cording in your honor i think that that would be the correct interpretation ok what cation is important like in the far case the distinction is that there were separate locations and even in the sexual assault case there occurred through amount of time apart so i don't see how you can rely on those cases for your position honor i think the common theme of all of the cases by this court which of hell that there's been multiple occurrences or accidents is that they involve separate injuries contacts by the insured with another vehicle or another person and the courts have not determined that the distance between the two incidents with the time between two is and have been the relevant inquiry in determining whether they were separate assets or occurrences the bottom line is that this course looked at whether they resulted in different injuries to different people gave rise to different liabilities to different people and that's exactly what the court found in turn and that's how they decided those cases even though some of those cases involved two instances two incidents simultaneously and i think that's how you can confirm that those kinds of those particular facts aren't relevant in determining the number of accidents or i see i have about a minute and fifty seconds left let me briefly  established very strict standards for certification they simply have not been satisfied in this case for a number of reasons first of all there is no dispute among the parties as to what the governing legal test is that's the cause test and there's also a long line of precedent by this court which is applied the cause test and exactly the manner that evanston argues for in this case and there is a long line of precedent that is specifically rejected the version of the cost as espouse by mid continent this case and furthermore it's important to note that this court has decided all of these cases involving the charmin nation of how many accents or occurrences there were without the need to certify the issue to the texas supreme court they decided on their own help here even if we don't sort of by this time just how from what level you're looking at the cars you used the phrase overarching cause at times and i'm not sure that's completely definitive here you can have an overarching you very quickly and we puddle walls this court shed on the contrary the only reasonable inference is that the insured driver had control of his vehicle after the initial up the road if i was driving to dischord from dallas and i had a accident and report we don't know how pathetically apathetic to home and then i had another accident in baton rouge hundreds of miles away i don't it's important for this court to realize those four property policy cases with different definitions they don't have the limit of liability section that why ability policies have in what we're dealing with occurrences in accidents it's important to look at the context there was also cited in some of the briefing i think ours maybe is theirs called random man two thousand one opinion from this court that was an employee dishonesty policy and two employees stole money at two different times and the question was is that two triggers or accidents or occurrences under that policy or is it one and again different language different definitions different types of policies and so i think it's somewhat critical that we look and see that we're dealing with a liability policy particularly with a commercial auto policy like we have here esp aspires it was judge shell's case where it was a tractor trailer the guy fell asleep when across it was on seventy five would across the line struck one vehicle later and struck another vehicle i think with all due respect to judge show that they just got it wrong they said they were following cause but they were in essence following an effects test case has been rejected as being flawed in its reasoning by a louisiana court appeals case the only case that ever followed that decision has been this district court case as far as the number of occurrences use of expert witnesses some of the courts are followed that as far as following it on the issue of the number of accidents the only case is this court now bird had an injury as contact and so this court's decision in respect cops would have to be overturned because we know we had a bunch of the twin city case that we've cited which was out of the western district of texas what really is doing is saying we're applying the clause to yes but really he's using a fax test language which this court in which texas courts in which the majority of courts in united states have rejected so i mean i think the key is we can all call it the cost test but just south of as you said the real issue is how do we define that yes what is that test and certainly there is from here today a disagreement regarding what is that has to be fair the district court agreed with them to be fair that's true we wouldn't be here otherwise if they would agree with us but again the question is did the district court apply the right test and we do not believe they did not of the cause tell us would be the no intervening const test well what we believe and we would argue if the court's looking at what is the cause test is the test that's our chickie elated in catch as the prevailing one and that is for one proximate uninterrupted and continuous call it results in the injury to more than one person or damage to more than one item a property there is a single trying to prove coverage and get more coverage it's not exclusion it's a it's a term to show more coverage so for them to get more coverage they have to show that there's two accidents as opposed to one accident and typically the party seeking coverage under insurance policy has the burden it shifts back to the insurance company for exclusions and then back to the party seeking coverage for exceptions to be so thank