the arguments today thank you to the court for an able to appear this way of life a lot easier for all of us and i know it's a challenge for everybody but thank you i just want to say that and i'm sure the tow truck the time of the accident because he was in the process of detaching the winch cable and in fact there was no evidence before the court that he was untouchable contact with a winch cable the strap or any other attachment  it's undisputed he had not yet completed detaching the strap from the vehicle the time of the accident occupying we suggest requires that the claimant the vehicle oriented is a three part test that the courts have a stablished to determine whether or not a claimant who was outside a vehicle is vehicle oriented and number one the departure from the vehicle must be incident to a temporary interruption of the journey the claimant must remain in the immediate vicinity of the vehicle  but for the interruption the claimant would have continued the journey and the attend and he intends to resume his place in the vehicle once the reason for the interruption is completed now this the courts in new york have been pretty clear on this and the martin as case which the court below cites to and distinguishes and tries to distinguish i think is exactly on point here you had a professional who was struck by a hit with me that that is a better case and more likely is occupying yes i would agree with ok so so he's not standing next to the vehicle ready to pull out and he's just attached to an turned ninety degrees and is facing back in the direction of his vehicle ready to take the st step is he occupying the vehicle i would say not your honor you would say not i would say not how is that any different than what he was doing i mean he couldn't get back into his truck and uses truck until he completed disconnecting the winch cable on the and the streets in the well the cloth device that had been put around the wheel he couldn't get back to resume everything that's nothing to get back to his vehicle but the cases for example where someone is directing traffic and then intensive go back to their vehicle the courts found that not the case these are what do you mean he was definitely oriented towards his because he was doing what he had to do to get back in but he but just just like somebody going into something with something is not part of the vehicle pulled out of the you don't discuss th century in agreements although the district court seemed to distinguish it on the grounds that the plaintiff that was pinned against this car a new york court has made clear that physical contact is not  claim it was standing behind his vehicle parked just a few blocks from here and on whatever you're in buffalo when when he was struck by another vehicle and he was pinned between the two vehicles that's a different situation he was preparing to open the trunk of his car to on load a box of books and while he wasn't physical contact with his vehicle the keys to the track were his hands and in actuation a court found that that this he was struck as a result of the the conduct of the other vehicle the vehicle that struck him and maybe should have applied for benefits to that car why didn't i don't know but that's where he should have  temporary hiatus from israel and was about to go back into his vehicle to continue his trip and that's a different situation we have here here we have a we have an employee told truck operator who had arrived at the scene had left his vehicle and was doing something completely independent of tranche of the transportation the journey of his vehicle he was working on a car he was working on a car that was pulled off of the side of the road it's it operating israel the time but is still connected to the journey in his vehicle so i see it is a different situation here there's a stoppage and a completely different task just like the fellow who is directing traffic  as to what the term occupying means i would have no objection to other kids about transporting goods in both situations they were unloading something and then they get back into their vehicle this is taking the car off of the tow truck right well your honor i don't see it that way i guess i see taking beer out of the vehicle that he is in or was in or is going back into that's not what occurred in this case in this case mr kellogg was not doing that he was not focusing on his vehicle if he had been worried because you have to think there was something truck and when you write you know your honor i think i see it as if i'm pleased different situation because here i see him focus on a different vehicle he's focused on the vehicle he pulled out of the ditch and that's what happened at the time an and he's injured as a result of another vehicle coming along and striking the disabled vehicle i see it is a different situation probably don't thank you i know the questions thank you thank you applied settled rules of new york law to rule that my client remains vehicles oriented the entire time he was involved in pulling the liam arab vehicle out of the ditch because we remember he was using his tow truck to do that the whole time so unlike the plaintiffs and martinez who was left to star trek on the side of the road and was walking away mr kellogg attached his toe truck to liam arrow vehicle used the tow truck to pull it behind it was actively disconnecting the tow truck and therefore was not only vehicle oriented but i think the trial judge properly found that he was upon the truck as as as that term is is defined under new  because he was touching a piece of the truck that went to cable and there's no question that a soon as he was done that because he told this to leah merrill that they were going to get in their cars and move to a safer location unfortunately this accident occurred before they could do that so i think in this case it's clear that the mightiness case does not apply because that person was doing something different it's also clear that the cases involving people driving and directing traffic don't apply because those people lost their vehicle orientation when they performed a task that was unrelated to the vehicle and that's not what kellogg was doing here so the judge properly determined that he was occupying the vehicle is entitled to some coverage the on the tip in the a tip coverage it's it's impossible quite frankly that a person could be occupying a vehicle and not using it for the purposes of tipping a to coverage there's no question that when he was injured he was actively disconnecting the tow truck from the from the billionaire vehicle and therefore was using his truck and under new york law the only it is that it is the insurance company for the vehicle you're using that is responsible for the payment of st probably benefit there's only two dollars exceptions to that rule one if you're occupying another vehicle which kellogg was not occupying another vehicle in this case and indeed child or general this is occupying his own vehicle or secondly if you're a pedestrian now michigan was never argued he was a pedestrian and of course he wasn't a pedestrian because at the time he was actively disengaging his tow truck american vehicle so as a result that the trial judge i think was confused by walton and walton really stands well to was merely asking a different question well didn't was not suggesting that proximate cause is necessary to determine who pays damages in a multi vehicle novocaine as well dealt with the question of is this a no fault case at all and in that case determined that that the person who was the line between it and remember when we thought it was adopted that was a version of compensation without fault which is not the normal rules anywhere and so i think what the what the court was concerned about in that case was making sure that that a rule that was in derogation of the normal common law rule was strictly construed to apply only to situations that the legislature intended for motor vehicle accident and this case from the beginning michigan miller's conceded that this was a motor vehicle accident and under the standard rules for who pays benefits it is the insurance company for the vehicle you were using and the judge made a mistake in not so you bring to her attention the inconsistency of her understanding of occupants occupancy and that evidence that is an insured for the additional schedule benefits or the additional personal injury protection protects  operation of a vehicle that is not an occupant of another car correct i agree with you your honor and i don't know if you had a chance to it's in the record to read the oral argument below but we talked about this  extensively and it was i you know i i think in retrospect i maybe wasn't as articulate as i could be but i simply couldn't get across the point that was dealt with a different issue and he said he should have perhaps applied to that other car i take it that he was of the view that he was an injured person under someone's policy and i take it the point of your argument is that no fall by the regulations to get it you go make the application to your policy fight it out later on right that's exactly right and in this case your are your insurance policy the vehicle that you're using or operating is responsible for the payment of benefits except in those two circumstances that i talked about one is if you're occupying another vehicle which doesn't apply here or to if you're a pedestrian which doesn't apply here right sixty five thousand three hundred and thirteen dollars from the commissioner's regulations talk paid in st party benefits correct correct correct and then it says that from that point on then it's a fight between the insurers to my knowledge that's never happened judge katz when asked about certification on and deciding whether or not to ask the court of appeals to look at this case they wouldn't look at it because i believe the legal issues have been well settled i think the issues become fact based and i don't think there's a lot of confusion about what the standard  what the rules are and in fact i think if you read both briefs both parties agree with the rules of this case was about the application of undisputed facts to those rules the plaintiff believe that the trial judge did appropriately in the defendant believe they did that she did operation the injury arose could you help me understand that sure i mean i think the statute helps but here's the here's the reality if you're using a vehicle or operating a vehicle then your insurer is the st part of provider st party benefits if you're a pedestrian or a bicyclist or somebody that's not connected to a vehicle then it's the vehicle that causes the accident and that that's just part of the statute the problem with the proximate cause language is it you know the and while they're talking about a single vehicle and so the talking about it being proximate cause the vehicle needs to be somehow a proximate cause in order to trigger liability without fault and that language gets very confusing and i'll be the st to admit that but once you understand that what walton was was dealing with a separate question then the statutory regulations and statute in the regulations regarding that all follow answer your question your honor injuries come from the insurance carrier of the vehicle he was operating at the time which is his vehicle even though that vehicle had nothing to do with this accident and my client's injuries come from i mean the st part of denver it's come from michigan no it's because they were the insurer of the vehicle he was using at the time used for operation is the trigger causation has nothing to do with it because that's a that's a that's you now you're not you're taking a negligence concept a fault based concept and term occupying that say that that should be in terms of the expanse of wealth cologne says that the term itself should be interpreted extensively in favor of coverage because it is  the court said and i think i'm quoting here the policy behind the statute is to secure to innocent victims of motor vehicle accidents recompense for injuries and financial loss inflicted upon them and thus the more expansive the reach of the term occupying the brunt of the sweep of coverage and that so that's the general direction but in this case let's remember one thing that the lynch cable is part of the tow truck it was connected to the truck track and it's the whole purpose for having a tow truck is and so to the extent what the judge ruled was that he that he was either in direct contact with it and we won't know because he has a brain injury and he can't tell us but he's either in direct contact with it had was just about to grab it or was had just let it go and therefore and i think quite rightly determined that that meets an expanse of desert definition of the term upon more importantly it immaterial whether he was actually in physical contact with the winch cable because he was the two cars were connected the truck in the and the lead america vehicle were connected and he was actively disconnecting a piece of the tow truck from the we of merrill vehicle which made him vehicles oriented those two vehicles were connected and he could not go about the rest of his job until he disconnected them and that's what he was doing  vehicle and then that sir vehicle came and hit him then that is martinez and biking as he wasn't touching the truck he wasn't using the truck he had merely the truck was got what got him to the scene at that point he became a pedestrian he was walking from his truck to another vehicle but that's not what happened here what happened here is that may have happened earlier but that's not when mr kellogg was injured instead he put the loop  connected his tow truck to the leon arrow vehicle then he operated the winch from the tell truck in order to pull the only american vehicle out of the ditch and he was in the process of disconnectedly or narrow that to me is so much more connected to tow truck then was mr martinez who was walking away from it for all we know to change a tire and may not have been nearest truck for twenty minutes thank you catch  earlier about you know if if if mr kellogg had set up and had walked turned towards his vehicle and turned towards his tell truck and was beginning to walk back with that be occupying the being upon his vehicle  and the suggestion on the question of questions never really suggests an answer but it was it was i guess suggested then that would be no different than what he was doing it seems my colleague concedes that if he was walking back to his vehicle or received actually all those benefits  i'd be happy to answer any questions i rather use my rebuttal time to do that employees who have to come to work every day and don't have this benefit thank you very much thank you very much and we are grateful to our inquiries as well