[00:00:00] Speaker 02:
All right, our final case this morning is 23-8024, Saddletree Holding versus Evanston.

[00:00:06] Speaker 02:
Ms.

[00:00:07] Speaker 02:
Olson.

[00:00:13] Speaker 04:
May it please this very honorable court and co-counsel, or opposing council, Mr. Mosley.

[00:00:20] Speaker 04:
My name is Anna Olson and I am appearing today on behalf of Saddle Tree Holdings, LLC.

[00:00:25] Speaker 04:
I'm also appearing today on behalf of my former co-counsel, Ronald Schmidt, who sadly

[00:00:32] Speaker 04:
and very unexpectedly passed away a few months ago.

[00:00:35] Speaker 04:
This was his brief and I'm here to argue that for him.

[00:00:39] Speaker 04:
I know he was desperate to be here today and so I would like to rely primarily on his brief and just highlight the issue that I believe is most important.

[00:00:51] Speaker 04:
And this issue regards the unreasonableness of the two-year contractual time period for filing suit against Evanston.

[00:01:00] Speaker 01:
Do you feel like he had made that argument in his briefs to us?

[00:01:06] Speaker 04:
I do, Your Honor, maybe not the way I would have done that.

[00:01:12] Speaker 04:
And really, before I wait, I dive into that argument.

[00:01:16] Speaker 04:
I would also acknowledge that Mr. Schmidt raised arguments of waiver, which were not raised below.

[00:01:23] Speaker 04:
And I don't believe should be considered by this court, because I don't think that issue has been preserved.

[00:01:32] Speaker 04:
However, with that said, we all know that the underlying policy provided for a two-year filing suit date from the date of loss.

[00:01:41] Speaker 04:
The date of loss in this case occurred in January of 2019 after a large snowstorm.

[00:01:48] Speaker 04:
Unfortunately, Saddle Tree was unable to realize the substantive loss because

[00:01:56] Speaker 04:
because of the snow.

[00:01:58] Speaker 04:
And so he didn't really realize there was even a loss until May of 2019.

[00:02:04] Speaker 04:
The claim was then submitted to Evanson with the senior claim suggestor, Harvey Goodman.

[00:02:11] Speaker 04:
Mr. Goodman hired the engineer, Remkes, to investigate the matter and determine what the cause of loss was.

[00:02:18] Speaker 04:
By this point, it's now seven months after the cause of loss, and so Saddle Tree has already lost seven months to file suit.

[00:02:29] Speaker 04:
Grimkiss determined that the cause of the loss was the negligent construction of the building combined with the weight of the snow.

[00:02:39] Speaker 04:
That was given to

[00:02:43] Speaker 04:
Mr. Goodman and Mr. Goodman denied the claim saying that while the policy does not provide for loss on negligent construction and that was submitted to the insured.

[00:02:55] Speaker 04:
However, I believe it is important to note that in doing that the insurance company made no mention of additional coverage D.

[00:03:05] Speaker 04:
in explaining the loss.

[00:03:08] Speaker 04:
So two months later, in September of 2019, Saddle Tree's attorney asks Markel for the Rim Kiss report.

[00:03:16] Speaker 04:
And this, I believe, is very important.

[00:03:20] Speaker 04:
Mr. Goodman denies giving the insured the Rim Kiss report because he states it's against our protocol to give you our insurance, our engineer's report.

[00:03:34] Speaker 04:
What is important about this statement is that it's false.

[00:03:39] Speaker 04:
There is no protocol prohibiting the insurance company from providing the insured with the engineer's report.

[00:03:48] Speaker 02:
You had your own engineer report, correct?

[00:03:52] Speaker 04:
Yes, we did, Your Honor.

[00:03:53] Speaker 04:
We did for Mr. Albertson.

[00:03:55] Speaker 04:
However, that report, if you look at it carefully, it states that the building collapsed due to negligent construction, which is not in dispute.

[00:04:05] Speaker 04:
But it did not mention that the reason why it collapsed was also because of the weight of the snow.

[00:04:11] Speaker 04:
And that's what was important.

[00:04:13] Speaker 04:
That's what triggers coverage under section D of the policy.

[00:04:20] Speaker 03:
Isn't it also true that Saddle Tree, when it asked for the report in September 2019, said it wasn't contesting the denial of the claim and that it was asking for the report to facilitate suit against dreams?

[00:04:41] Speaker 04:
Yes, Your Honor.

[00:04:42] Speaker 04:
Thank you for bringing that up.

[00:04:44] Speaker 04:
I don't know why Mr. Durant said those things.

[00:04:47] Speaker 04:
It's possible he didn't know that there was a potential claim against the insurance company because we didn't have the Rimkus report to tell us that the weight of the snow is what caused the collapse.

[00:05:01] Speaker 04:
However, I humbly submit that that statement does not excuse the misrepresentation that the engineer's report couldn't be provided because of the protocol that does not really exist.

[00:05:17] Speaker 03:
Did they have a duty to produce the report?

[00:05:21] Speaker 04:
Well, Mr. Durant said they did and said that he had discussed... Well, does the law say they had a duty to report, to produce the report?

[00:05:31] Speaker 04:
Right.

[00:05:32] Speaker 04:
Well, that issue was not discussed before the district court.

[00:05:37] Speaker 04:
I always wanted to make the argument, I always believed that

[00:05:42] Speaker 04:
The insurance company must act for the benefit of its insured.

[00:05:46] Speaker 04:
And when we were told that there was a protocol prohibiting the release of the report, we took them at their word for it and didn't dispute it and come forward with law saying that you needed to produce this report.

[00:06:04] Speaker 04:
So, tragically, the RIMCAS report was not disclosed to Saddle Tree until eight months after the contractual time period had lapsed.

[00:06:16] Speaker 04:
Then there was additional discussions with the insurance company regarding whether the collapse of the building was abrupt and whether there was coverage under subsection D.

[00:06:29] Speaker 04:
when Evanston finally denied the claim again for a second time that was in December of 2021 and three months after that suit was filed.

[00:06:41] Speaker 04:
So I argued to the district court that the two-year time period was unreasonable because of her statements in Judge Friedenthal's statements in Thompson v. Protective Insurance Company.

[00:06:56] Speaker 04:
She held that a two-year time period is unreasonable when filing suit, especially in Wyoming, when the statute of limitations under a contract dispute is 10 years under a written provision.

[00:07:10] Speaker 04:
And we also argued that Evanston should be stopped from asserting the two-year time period because you cannot benefit from your own wrong when they deliberately and intentionally make a false statement that they cannot disclose the RIMCAS report because of a protocol that doesn't exist.

[00:07:34] Speaker 04:
They shouldn't be entitled to benefit from that.

[00:07:37] Speaker 03:
Do any of the established cases involve a contract limitations period?

[00:07:43] Speaker 04:
Your Honor, I believe they did.

[00:07:46] Speaker 04:
And I know that this circuit and the cases that I've read from this circuit, the circuit is very clear that contractual time periods are valid and they do apply.

[00:07:58] Speaker 04:
And unfortunately, this court has also held that a shorter time period of even one year applies.

[00:08:04] Speaker 04:
But at least in the District of Wyoming, the district court has applied an estoppel argument.

[00:08:11] Speaker 04:
And it's just a basic common law maxim that one cannot benefit from his or her wrong.

[00:08:19] Speaker 04:
And because we claim that Evanston benefited by withholding this report from us for well over 20 months, they should be stopped from asserting this contractual time period.

[00:08:32] Speaker 01:
Can I ask you, I don't mean to interrupt you, but what about, what if we were to say, okay,

[00:08:40] Speaker 01:
Well, Evanston, you cannot benefit from your wrongful statement about your protocol.

[00:08:49] Speaker 01:
So when Mr. Bagley had said that the building, that the accumulation of snowfall had caused this caving in, you can't, you're a stop from arguing that.

[00:09:06] Speaker 01:
Okay.

[00:09:07] Speaker 01:
But what about the other arguments with regard to additional coverage?

[00:09:11] Speaker 01:
For example, the provision that says that the additional coverage provision doesn't kick in because the building and all of its parts are still standing.

[00:09:20] Speaker 04:
And I raised that issue to the district court and cited many, many cases about collapse and standing.

[00:09:29] Speaker 04:
And I believe, and I think this was accepted by the district court, that simply because the building is quote unquote standing, if it cannot be used for its intended purpose, it has been considered to be

[00:09:43] Speaker 04:
collapsed or cave in.

[00:09:45] Speaker 04:
There are many cases that say even a six inch downward deviation, if the building can no longer be used for its intended purpose, can be said to have collapsed.

[00:09:57] Speaker 04:
And that's what I maintain to the district court.

[00:10:00] Speaker 04:
Unfortunately, we didn't even get to that issue because of the contractual time period.

[00:10:07] Speaker 04:
But I would love to see this case reversed so I can pursue that with Judge Friedenthal, although she's retiring sadly.

[00:10:15] Speaker 04:
But with your leave, I would be seated.

[00:10:18] Speaker 02:
Thank you.

[00:10:33] Speaker 02:
Okay, well, no, just raise your hand when we're down to five minutes and raise it again when there's zero.

[00:10:40] Speaker 02:
How much time did she have left?

[00:10:41] Speaker 03:
She has four minutes and 43 seconds.

[00:10:43] Speaker 02:
Okay.

[00:10:45] Speaker 02:
As long as you're getting it, just let me know when the clock expires.

[00:10:54] Speaker 00:
Good morning.

[00:10:54] Speaker 00:
My name is Jeremy Mosley and I represent the Appalese, Evanston, and Markel.

[00:10:58] Speaker 00:
May it please the court?

[00:11:02] Speaker 00:
This property insurance appeal results from plaintiffs' belated attempt to claim that a building that is still standing today actually collapsed back in 2019.

[00:11:14] Speaker 00:
The undisputed facts confirm that plaintiff's claim, the contract claim, is too late, first of all.

[00:11:21] Speaker 00:
Second of all, that Evanston reasonably investigated the claim by hiring and relying on an independent engineer.

[00:11:28] Speaker 00:
And third, that plaintiff has no damages related to any alleged bad faith conduct by the defendants.

[00:11:36] Speaker 00:
The district court correctly evaluated these issues, determined them under Wyoming law, and this court should affirm.

[00:11:44] Speaker 00:
As background, in 2014, plaintiff's owner, Mr. Gose, hired one company to pour a foundation.

[00:11:52] Speaker 00:
He hired the Dream Carport Company to construct a building, and then he added drywall and insulation.

[00:11:59] Speaker 00:
It's undisputed by every engineer who's looked at this that the building design is defective.

[00:12:05] Speaker 00:
It was defective from the beginning, and the building was not designed in a way that it could withstand its own weight.

[00:12:12] Speaker 00:
much less the weight of any snow load that it would be required to under building code.

[00:12:18] Speaker 00:
That means even if this building were built in Arizona, over time, it was still going to start to sag.

[00:12:25] Speaker 00:
And that's what happened only five years after it was built in the winter of 2019.

[00:12:29] Speaker 00:
Now, a plaintiff claims the building was damaged as a result of snow in January 2019, but he didn't report the claim until May.

[00:12:40] Speaker 00:
Once the claim was reported, Evanston and Markell sent an engineer who provided an opinion and a report.

[00:12:49] Speaker 00:
That engineer met with Mr. Gose on site and told him and left with a distinct impression everyone understood the condition of the building.

[00:12:59] Speaker 00:
And then Evanston and Markell provided their denial letter because the cause of loss was the result of a defective building.

[00:13:07] Speaker 00:
That was July of 2019.

[00:13:09] Speaker 00:
So from the time that Evanston learned of this loss, it was reported May 6, 2019, till the end of July when they provided a letter providing their opinion.

[00:13:22] Speaker 00:
That's less than three months.

[00:13:25] Speaker 00:
So the question of whether a contractual limitations period is reasonable, they're certainly enforceable if they're reasonable.

[00:13:32] Speaker 00:
The district court correctly determined it was reasonable.

[00:13:35] Speaker 00:
Now, I would disagree with opposing counsel because I don't believe the reasonableness of the titlement wasn't raised on appeal.

[00:13:43] Speaker 00:
It was raised to the district court and rejected, but it was not raised on appeal and therefore doesn't need to be considered in terms of the reasonableness.

[00:13:51] Speaker 00:
If the court does consider the reasonableness, it is.

[00:13:54] Speaker 00:
It's reasonable.

[00:13:54] Speaker 00:
It's two years.

[00:13:56] Speaker 00:
It was a three month investigation.

[00:13:58] Speaker 00:
And what the district court specifically looked at was the fact that it's not a situation where the insurer essentially runs out the clock.

[00:14:07] Speaker 00:
Let's keep looking at it and then says at the end, oh, it's not covered, leaving the insured in a position of it's time to sue.

[00:14:16] Speaker 00:
Now they think they need to sue and it's too late.

[00:14:19] Speaker 00:
The time's already run out.

[00:14:20] Speaker 00:
That didn't happen here by any means.

[00:14:22] Speaker 00:
It was a three-month investigation.

[00:14:24] Speaker 00:
There was still a year and a half left to be able to sue under the two years.

[00:14:30] Speaker 00:
And in fact, as the district court also found, it didn't prevent, nothing stopped the plaintiff from filing a lawsuit.

[00:14:37] Speaker 00:
They just didn't file it against Evanston.

[00:14:40] Speaker 00:
They didn't file it against their insurance company where there was no coverage.

[00:14:44] Speaker 00:
Instead, their counsel at the time agreed there was no coverage and sought to bring a claim against the

[00:14:50] Speaker 00:
manufacturer of the building.

[00:14:52] Speaker 00:
They obtained a $2.2 million judgment, a default judgment against that builder that they are still working to collect, last we knew.

[00:15:01] Speaker 00:
So there was nothing that conduct by Evanston or the defendants prevented the plaintiff's saddletree from pursuing any remedy, including if they had at the time disagreed

[00:15:17] Speaker 00:
with Evanston and decided they wanted to bring a claim.

[00:15:21] Speaker 00:
One of the things raised just now about that timing was then the fact, of course, that the report was not provided.

[00:15:27] Speaker 00:
And I want to clear up some things from the record.

[00:15:32] Speaker 00:
The record specifically says that the attorney asked for that report so that they could bring a claim against somebody else.

[00:15:40] Speaker 00:
Instead, we agree with your decision to deny the claim.

[00:15:43] Speaker 00:
Now we're going to go get someone else and we'd like to use your engineer's report.

[00:15:47] Speaker 00:
Meaning this, we agree the claim is over.

[00:15:51] Speaker 00:
We're not challenging it, but we want to take the investigation, the materials that you use to evaluate insurance coverage, and now we want to take it and use it against somebody else instead.

[00:16:02] Speaker 01:
Well, if you have an obligation to provide the material that the insurer used in order to deny the claim, why does that obligation disappear based on the insurer's purpose in using it?

[00:16:16] Speaker 00:
Well, first of all, there's not an obligation.

[00:16:19] Speaker 01:
You don't have an obligation to provide the insured on request for information that the insurer used in order to deny the claim?

[00:16:28] Speaker 00:
No, there's no obligation to turn over your claim file.

[00:16:30] Speaker 00:
There's no obligation to do that.

[00:16:32] Speaker 00:
You have an obligation to provide the basis for your opinion or your decision and why, which was the letter, which explained everything.

[00:16:40] Speaker 00:
So that letter was required and the detail in that letter in terms of the basis for denying a claim, but there's simply no

[00:16:47] Speaker 00:
Legal duty, there's no insurance regulation, there's no statute, there's no case law that requires it.

[00:16:54] Speaker 00:
The lower court agreed that there was no duty earlier in the case in dismissing the other defendants that had been sued.

[00:17:01] Speaker 03:
So I take it then that you would contest characterization that there was a misrepresentation about whether the policy could be turned over?

[00:17:13] Speaker 00:
Well, absolutely contest.

[00:17:17] Speaker 00:
the factual record that's been presented in terms of what was actually said to the insured.

[00:17:24] Speaker 00:
What I mean is this.

[00:17:25] Speaker 00:
The adjuster did not respond to the insured and say, we have a protocol, we're not giving it to you.

[00:17:33] Speaker 00:
All they said was, I'm sorry, we can't comply with the request.

[00:17:37] Speaker 00:
There was an internal email

[00:17:39] Speaker 00:
where a discussion was had about whether to turn it over.

[00:17:43] Speaker 00:
And one of those people who was not opposed to this case said, it's against our protocol to turn it over.

[00:17:49] Speaker 00:
When asked at deposition, the adjuster, Mr. Goodman, said, I don't know what he's referring to because we do this on a case by case basis.

[00:17:57] Speaker 00:
And in this case, that meant getting legal counsel and having the legal department review the request.

[00:18:04] Speaker 00:
And then the decision was made by the adjuster to not

[00:18:07] Speaker 00:
provide the report when it had been requested in that context.

[00:18:12] Speaker 00:
So there was no misrepresentation of a policy.

[00:18:16] Speaker 00:
What was said to the insured at the time was, we're not going to comply with your request.

[00:18:22] Speaker 00:
The corporate representative of Evanston was later deposed and he provided the reason for that and it was exactly what we've talked about.

[00:18:31] Speaker 00:
It's a case by case basis.

[00:18:33] Speaker 00:
And when they are not even challenging our decision, and the whole reason is to use that report to go bring a claim against a third party, we did not turn it over in that context.

[00:18:43] Speaker 00:
We made that decision.

[00:18:44] Speaker 00:
Really, they need to go get their own engineer to pursue that claim, which they did.

[00:18:49] Speaker 00:
The other thing I want to point out that's different is Mr. Albertson's report that they then went and got from him actually says the building didn't collapse.

[00:19:00] Speaker 00:
Their own expert.

[00:19:01] Speaker 00:
Their own engineer said, this is not a collapse.

[00:19:05] Speaker 00:
And he says, thankfully, it's not a collapse.

[00:19:08] Speaker 00:
It wasn't until two years later when there was a change in legal strategy and a change in plan to make this into a collapse case under the insurance policy that he writes a supplemental report and says, well, actually, my opinion is there was some type of zip-like collapse that had happened back then.

[00:19:26] Speaker 02:
Did Judge Friedenthal find that there was a collapse?

[00:19:29] Speaker 00:
She did not.

[00:19:30] Speaker 00:
She essentially said, I don't have to go there because the contractual limitations period has run, and since there's no contract claim that can be pursued, I don't need to make that coverage determination.

[00:19:41] Speaker 00:
And the thing is, collapse is actually an open question under Wyoming law, what it takes to establish that.

[00:19:47] Speaker 00:
Judge Friedenfeld has a prior case, the Wandler case, in which she had analyzed collapse.

[00:19:52] Speaker 00:
And in doing so, she said there's these two different tests.

[00:19:55] Speaker 00:
And I don't need to decide which one will apply in Wyoming or under Wyoming law because under either one, it fails.

[00:20:03] Speaker 00:
But that's the latest we have, if you will.

[00:20:06] Speaker 00:
Now, in Wyoming, there is the Nabani case out of the New Mexico District Court in which Judge Matheson and Judge Simpkis both affirmed what Judge Brack of the District Court did there in determining that based on very similar policy language to what we have here, there's no collapse.

[00:20:25] Speaker 00:
I mean, this would be a potentially fundamentally different appeal if we went into the issue of coverage overall that the district court didn't do.

[00:20:34] Speaker 00:
There's no reason to because the contractual limitations period passed and was reasonable.

[00:20:39] Speaker 00:
But if we did, then this court would need to decide which test actually applies under Wyoming law and then apply that test.

[00:20:48] Speaker 00:
Now, I submit to you, just like in the Navani case, the test must be won

[00:20:54] Speaker 00:
that accounts for all the words in the policy, such as it can't apply to a building that is actually still standing and only has bending, bulging, and things of that nature.

[00:21:07] Speaker 00:
And when you take a survey of collapse cases across the country, there are many jurisdictions that really just don't consider any of that language.

[00:21:18] Speaker 00:
And whether it's not even in the opinion, they don't even address it, or whether in some cases they say, well,

[00:21:24] Speaker 00:
I don't know about that.

[00:21:25] Speaker 00:
Maybe it's ambiguous.

[00:21:26] Speaker 00:
A couple cases have done that.

[00:21:27] Speaker 00:
But there's a stronger line of cases, if you will, such as Nabani, that say in this court, affirming saying that this was not an ambiguous policy in Nabani, to say this is not ambiguous, it's clear.

[00:21:41] Speaker 00:
This is what's required for collapse.

[00:21:43] Speaker 00:
A building that's in danger of collapse has not collapsed.

[00:21:46] Speaker 00:
A building that's still standing has not collapsed.

[00:21:49] Speaker 00:
And that's part of why when Markel and Evanston, the adjuster, looked at this

[00:21:54] Speaker 00:
claimed he didn't cite to language that he looked at and said doesn't apply.

[00:22:01] Speaker 00:
He told them this is a defective design, there's no coverage.

[00:22:05] Speaker 00:
He didn't go through the policy and say, well, someone might say this applies, but since I don't think it does, let me tell you about it and why it doesn't.

[00:22:12] Speaker 02:
And that's not unreasonable.

[00:22:14] Speaker 02:
The bill didn't fall down, but it's not usable for its intended purpose.

[00:22:20] Speaker 00:
Well, but that depends.

[00:22:22] Speaker 00:
So here's the thing.

[00:22:23] Speaker 00:
The engineer actually said, we have seen what a certain snow load has done to this building, and it has withstood that.

[00:22:32] Speaker 00:
It's damaged, but it didn't collapse.

[00:22:34] Speaker 00:
It didn't fall down.

[00:22:35] Speaker 00:
The engineer actually got on the roof and walked on this building.

[00:22:38] Speaker 00:
You don't do that if you're worried about the building falling down.

[00:22:42] Speaker 00:
Well, I don't.

[00:22:43] Speaker 00:
I don't think an engineer does that.

[00:22:44] Speaker 02:
There's some crazy adjusters out there.

[00:22:47] Speaker 00:
He's the engineer, not the adjuster.

[00:22:49] Speaker 00:
But I'm with you.

[00:22:50] Speaker 00:
It's a little different.

[00:22:51] Speaker 00:
So the engineer has looked at this and said it didn't collapse and it's not in danger of falling down.

[00:22:56] Speaker 00:
But what he did say was be careful in the snowy months because essentially if it gets more snow load than we already know it can handle, then that could be a problem because we've got a defectively designed building.

[00:23:08] Speaker 02:
Well, you said earlier that even if it were in Arizona, it's a risk of caving in.

[00:23:13] Speaker 02:
So I don't think you'd want to use a building in that condition as an event center.

[00:23:19] Speaker 00:
Well, no, you shouldn't in the way it was built in the first place.

[00:23:22] Speaker 00:
But in terms of did it change as a result of this storm and now in a way that you can tie it to a covered event, you can't.

[00:23:32] Speaker 00:
It didn't change.

[00:23:33] Speaker 00:
It had this fundamental flaw that existed from when it was built that still exists today and it's still standing as well.

[00:23:41] Speaker 02:
It could be a house of cards type building.

[00:23:47] Speaker 02:
You can also have a snow or weather event that would collapse it, that would generate coverage.

[00:23:55] Speaker 02:
It seems like, depending on how we interpret those provisions, they conceivably could apply here.

[00:24:01] Speaker 00:
You could have had a snow event that had so much snow it actually collapsed the building, but you didn't.

[00:24:08] Speaker 00:
What you had was a building that deflected.

[00:24:11] Speaker 00:
And there's an argument about whether it was immediately or something that occurred over time that the district court didn't get into as well.

[00:24:19] Speaker 00:
But the fact of the matter is,

[00:24:20] Speaker 00:
The stronger case law I submit, unlike the Nabani case, is that this provision would say that there's no coverage even for a collapse.

[00:24:28] Speaker 00:
But this court doesn't need to go, or pardon me, there is no coverage here because there wasn't a collapse.

[00:24:33] Speaker 00:
The court here doesn't need to go there because this court instead should find the two-year provision contractual limitation is reasonable and Edmondson should not be a stop from relying on it.

[00:24:46] Speaker 00:
because they did not misrepresent anything.

[00:24:49] Speaker 00:
They simply said, we're not going to give you the report in the context of there being no law, no insurance regulation, and no other duty to provide that report.

[00:24:58] Speaker 00:
And particularly when the request was, I want to use that report to sue someone else.

[00:25:04] Speaker 00:
The final thing I'll point out, Your Honor, is procedural bad faith.

[00:25:08] Speaker 00:
There are no damages related to procedural bad faith.

[00:25:11] Speaker 00:
that the arguments essentially come in a circle right back to saying, well, but if we had coverage, then here's the damages we have.

[00:25:21] Speaker 00:
But Mr. Ghost said in his deposition, he agreed he had no idea what he would have done differently if he had received the report in 2019 instead of receiving it in 2021.

[00:25:33] Speaker 00:
That's not only relevant to estoppel, it's relevant to bad faith.

[00:25:37] Speaker 00:
There is no causation related to any of that alleged bad faith conduct.

[00:25:43] Speaker 00:
This court should affirm.

[00:25:44] Speaker 00:
Thank you.

[00:25:44] Speaker 00:
Thank you, counsel.

[00:25:48] Speaker 02:
We are getting the screen now.

[00:25:51] Speaker 04:
Just briefly, Your Honors, the only reason why the building has not collapsed into a pile of rubble into the ground was because shortly after Mr. Bagley came out there and looked at it,

[00:26:04] Speaker 04:
the insured put in some temporary shoring, which has prevented the building from completely falling to the ground.

[00:26:14] Speaker 04:
The temporary shoring has damaged the heating in the floor, and so it can no longer be used as a community building, which is what its intended purpose was.

[00:26:24] Speaker 04:
I think it's also interesting to note that Mr. Bagley in his report said that this building in its current condition should not be used.

[00:26:34] Speaker 04:
ever, not in the summer, not in the winter.

[00:26:38] Speaker 04:
He didn't get up and walk around it.

[00:26:40] Speaker 04:
I don't know why he did that, but he ultimately concluded that it should not be used in his current condition.

[00:26:51] Speaker 04:
It's also notable that despite the fact that Evanston knew that the building was dangerous, shouldn't be occupied by anybody, they did not tell their insured that.

[00:27:03] Speaker 04:
They have the obligation to be truthful and honest with the insured and they deliberately withheld that information until the contractual two-year time period had last.

[00:27:14] Speaker 04:
Thank you so much for your time and attention to this case.

[00:27:17] Speaker 04:
I'm very grateful.

[00:27:19] Speaker 02:
Thank you.

[00:27:22] Speaker 02:
Excuse and case is submitted and the court will be in recess until tomorrow morning at 9 o'clock.