the boat appeared to be having some engine trouble mr cooke at this time was steering the boat in the wheel house of the boat and underneath it the floor of the wheel house there is a an engine compartment hatch the hatch was removed by one of mr close friends erred here interpret in the language of the policy at issue in the pollution exclusion at issue where were the friends at the time i know maybe it's not per but it was so one of the friends was i had been feeling nauseous and had decided to take a nap in that into the cabin of the boat the other friend of course was the one that removed the hatch he he passed away fell into the engine compartment mr quick fell into the engine compartment as well and suffered burns there in but but survived the the district court aired an interpreter in the language of the policy applying the law to the undisputed facts of this case and the question really to boil it down make it a simple as possible is whether the interior engine compartment of the vote is the atmosphere or natural environment on the board of regents if the if that questions answered in the affirmative that the engine compartment is the atmosphere or a natural environment then the the exclusion would apply  absolute or qualify pollution exclusion it simply doesn't matter in this case but but certainly can visit that issue and there is there is no case that says that all absolute pollution exclusions are  and what is something else i would look at the at the atmosphere as the as the court and board of regents instructs us to or the real case to to to to to refer to the natural environment or some a release into the atmosphere so the so the release occurs on that day needn't then yes i would agree with that but now our situation is different there the release of the pollutant the seems to be a problematic is this isn't a building in the other case and seem to deal with a building or enclosed area we have something that is neither a building nor fully enclosed so how are we to interpret the which which states and i'm paraphrasing that we don't understand the term atmosphere to refer to the multiple diverse and environs in or around buildings seeming to suggest that you know if you if you take a  such as you know i don't know downtown tokyo it's not going to be the natural environment and and certainly in the board of regents case there are the courts concerned with this natural environment language not concerned with whether or not we are inside a building so i would point to the to the interior of the boat the mechanical inner workings of the boat the engine compartment and suggest that that's not the natural environment i would also suggest that the wheel house of the boat being enclosed on all sides but one and the  pictures show the pictures of the boat in the joint appendix show that this is a this is a this is a big boat it's a twenty five foot boat and the wheel house is quite large we've equated that in the briefing before the district court to a to a garage presumably well it's a building so presumably we can all agree that border region applies there that it's not a natural environment a garage a release there would be a release not to the atmosphere and if you know if we open that door to the garage and all of a sudden we have all sides but one enclosed as a convert it to the atmosphere with this really three sided was it was the back always open or was there a way like in your garage example to close that it released into the garage in that setting and we can think of we can think of nonpermanent structures as it is the inside of a of a circus tent the natural environment when you've got people in there you've got some sort of temperature control and you don't have this th s free flow of of atmosphere and so that's that's you know really the issue in this case now what i will say also is that really kind of ventilation machinery or equipment that was a part of for that three so enclosed area for the wheel house itself is or some kind of circulation of air from from outside of it just what would come away in a closed area no no your honor not to my knowledge i don't know in that case where they were in this case where the where the windows of that boat could open some way i think the pictures show that the the windows were closed and i think that presumably you could you could mount a small fan in there but there wasn't one in this case but to answer the question more directly  no no no ventilation in from the from the front i suppose of the boats in motion what was that what's the point of release in your view well there must be so as opposed to the mere presence pollutant you know for example in a barrel could be a pollutant or in the traditional environmental science or oil in a pipeline the oil might be a pollutant but there's got to be that release before damages can can arise so so in that it doesn't matter whether it's a first second or third or fourth release that's true and there's never been a dispute about the policy of course doesn't of course and touch on that but the policy does require that the damages reliability arise out of a release and so  decided to the brockway case in which a couple kids playing around on a dock one one friend pushed the other into shallow water causing damage and the court found that that a rose out of the use of a doctor that was the boat for causation that the that  the injuries arose from flowed from originated from that that release so we would like in this this case to wakefield pork and none of these cases by the way have been decided wrongly in our view we believe that they  are you know i think that the walters court room regards the the course that minnesota has taken on this as as regrettably harsh in some cases that may be but our position we believe is consistent with the with the minnesota case on this so we liken it get circling back to the wakefield pork case in which there was a in which the damages arose out of the release of pollutants into the atmosphere that that exclusion did contain the atmosphere language it also required that subsequently moved so that's a case similar to this because you have that dispersal language in the wakefield pork policy why wasn't the movement of the pollutants from the from the cesspool to the home why wasn't that  dispersal that these damages arose out of well the court held that because it first went to the atmosphere that's where the pollution in that case originated just like in board of regents it originated in a building and did damage there here to  atmosphere so and maybe you've answered it and i just didn't quite understand what are you saying there's are there two releases there's a release into the engine compartment before the man opens the compartment and then there's a second release into the wheel house arguably your honor that that point was never made by travelers i think we anticipated that argument in our opening summary judgment brief at the district court level where's the release on your from your stance the release from our standpoint is into the engine compartment clearly the natural environment and clearly subsequent movement to the wheel house we believe there are not atmosphere even if there was there was it was atmosphere on the deck it's it's simply simply not important the damage in this case arise from that first release into the engine compartment why is why is that critical mean the policy isn't limited to releases the exclusion is of limited releases that includes dispersal and migration and so forth correct i've of the pollutant into the wheel how yep migration into the wheel house are you not saying we should focus only on the release in the engine apartment are you and i am because the damages must arise out of a release of pollutants into the land atmosphere water why doesn't the injury here arise out of the scape or migration of the pollutant into the wheel house because but for the release into the engine compartment there could be no damages now not the case with the release into the wheel house necessarily the parties have agreed that carbon monoxide is extremely deadly and could cause damage up above the deck and so it is clear absolutely clear that there could not have been damages caused by carbon monoxide in the parties agree it's caused by carbon dioxide had there not been the release of carbon dioxide into the engine compartment not necessarily true that the release into the wheel house of the boat would you have had a case if there was no just like to compare this time out of time i'd like to compare this briefly to two well continental casualty versus advanced or other which was in its circuit case a much broader pollution exclusion i would suggest morning behalf of appellate travelers property casualty company of america and council in court we would request that the judgment and or of the honorable donald donovan frank be affirmed by this court really for two reasons one judge frank correctly applied the law in this case he held joint appendix eighty that the pollution exclusion appli when the pollutant at issue is released directly into ambient or outdoor air and converse lee does not apply when the pollutant is released into the air inside of of aids in close structure such as a house or other injuries occurred while the fishing boat was outside on lake of the woods due to an engine malfunction carbon monoxide gas built up in the fishing boat engine compartment before it was released into the open air when the cum partment atmosphere i e ambient air it applies in this case where carbon monoxide gas was released into the an enclosed air surrounding the fishing boat i want to point you to the board of regents case which is the  had two different languages the primary policy was similar to the travelers policy issue in this case because it used the word atmosphere in other words it were to the natural environment watercourse waterway those age ninety two the minnesota supreme court at eight ninety three says at one level the distinction we make may seem to draw a fine line but words are deliberately chosen and we believe the words atmosphere here that we think the construction we have given the word atmosphere atmosphere here is can text really sound and functionally pertinent and they say again at age ninety three the term atmosphere we think we first to the ambien boat it's not soft sided on three sides correct soft back on it and it was enclosed you're still saying it's not its atmosphere not air even though it would be i am because it's not a building and i think the distinction that the minnesota supreme court drew in board of regents is air inside of a belly and atmosphere outside of a building and that's a distinction this is not a building it wasn't fully enclosed it was on a lake he eight ninety two and eight ninety three so even a something that someone is in its enclosed on all the minnesota supreme court goes back on another case and change and changes the law but this is a fine line the distinction they drew in one thousand nine hundred four between the words atmosphere and pollution exclusion and the words pollution exclusion and the distinction is air inside or within a building or atmosphere air outside of a building and if you actually look at what the the dissenting judge judge garda bring i find nothing in the word atmosphere which limits it to mean outdoor air but that's exactly what the minnesota supreme court did they drew a fine line and said air within the building at outside air is different than air within and that's not the disappear you're saying the distinction is building but but but the air inside a that means air outside of a building and when i'm looking at that air it's air within a building and that distinction ambient air means air out external air outside of a building  and eight ninety two to eight ninety three board of regents makes that very very clear the other thing that i think that a appellant wants to do in this case is talk about the wheel house being an enclosed space or the engine compartment being and then close to face again that that that misses the distinction that was drawn by the minister's minnesota supreme court between air inside of a building or atmosphere outside of a building which i think is important but secondly it's not factually accurate to say that that those are enclosed spaces that the engine compartment was an enclosed space or that the wheel house was in and once the engine compartment comes out comes off that is when they're overtaken by the carbon monoxide fields and so that is the a vent the release that causes the carbon monoxide to free flow in the in the atmospheric air or the outside ambient air so it isn't because if that if a cover had remained on we maybe have a different case where they make it to the shore but that isn't that isn't factually what happened here also factually this wasn't a house boat and so we're not dealing with you know hypothetical situation where some people are inside of coming back and so it isn't a houseboat situation it's not a camper situation it's not a tense situation that's not what we're we're here on stipulated facts we've got the photos so we know exactly what happened and we are dealing with the on and the nimby of us and on all courts in minnesota that have dealt with either qualified or absolute pollution exclusions have found language to be unambiguous so in this case it's simply a matter of plying the board of regents distinction two languages in the traveler's policy and under under that under that set of circumstances i believe judge frank got it right when he applied  the distinction drawn by the minnesota supreme court to the undisputed facts and in this  only cover the first release or are we only exclude if it's a third release it doesn't matter how many times there is a release if injury arises out of the release  it is in the the atmosphere which is language and in the traveller's policy and that's where he was when he was injured it applies in that excludes coverage they also had wanted and i wanted to talk a little bit because they talk about well he you know he falls and he falls into the engine compartment at some point in time and so that's how he's injured the case law is very clear that you can't separate out different events to get coverage for one i mean if it's excluded from wanted to excluded it's excluded for all you can say yeah you can separate out you can't separate out a vent so the fact that he has a burn injury from falling into the engine compartment he falls into the engine compartment because of the carbon monoxide poisoning so you don't get coverage for the burn injury because it arose out of the carbon monoxide poisoning is essentially the the point i'm trying to make in the other questions