our next case is wichita fireman's relief versus kansas city life insurance number seventeen three zero four seven and seventeen that ash three one  the magistrate originally ruled against you on summary judgment apparently and you have to lift the magistrate acted in that state you don't your honor thank you for bringing that that was to me that's the most logical decision  like isn't there a question there with the magistrate judge and that feeds into our first argument as a matter of law the decision that we're looking at today is focused upon what the insurance company did in two thousand and ten the magistrate judge the so the insurance company identified two faces in both the february and june two thousand and ten denial letters none of them mentioned exertion as an accident in fact they both only identified max on the third generation and the surgery to correct the mix on a missed a generation focusing as the magistrate did here for his first justification upon that twenty fourteen question is an error of law because it infuse the dispute that was present in the underlying litigation for this case with the denial which occurred four years earlier accident that caused the injury or the cause of the surgery and during that surgery to correct the chordal rupture mr egg are kept in that died so the ad hoc committee at th time we have evidence in this case that they may have considered that what the only evidence that we have of what the ad hoc committee actually did in two thousand and ten prior or four years prior to the cur to be the cause of the symptoms well you'll say the cause that the standard is that it's contributing to the death right and why is it a lie is that the magistrate is wrong to say no bad faith or phrase that is not term to be tied to a preexisting condition the language of the policy in this case says that the cause of the loss in this situation death can't be tied to the mix on a must to generation that's why the magistr judge is finding the facts are critical in this case that the symptoms in this case were intervention by the acute chordal rupture the symptoms were unrelated to the mix on with the generation so the symptoms led to the surgery and during the surgery to fix those symptoms of the chordal rupture cost a loss in addition this is a guarantee issued policy that's your question is one that i had as i was coming out here yesterday i'm cannot rely four to six years later upon what is perhaps a preexisting condition in this situation if you look at the language of the policy it's tied to the cause of the loss and in this guilty and miller have you know we're uncertain as to what that the evidence before the magistrate judge that nobody bothered to look at nobody told the insurance company hey we think that this exertion as an accident is the basis for decision instead we have a february twenty sixth two thousand and ten letter and then a june tenth two thousand and ten letter and the only thing they said was mixed on almost a generation when at the time they made that statement they knew as a matter of fact that was incorrect to put a little finer point on it but you say that that the insurance company knew certain facts to be untrue when it denied the page eleven of the bad faith what we call the bad faith order appendix nine two seven one and that is the list of seven factors and then if you turn to page twelve of the magistrate judge at the top of it knew at the time of the decision that makes on a missed a generation while perhaps present was asymptomatic it knew that the con or the need for surgery was the chordal rupture it knew very simple you're saying that they knew certain facts to be untrue and my question was what were the facts they knew to be untrue and i think you are now saying that they knew the preexisting condition was material issue disputed fact as to whether the rupture of the court of structures was caused by extreme exertion in fighting the fire and therefore constituted an accidental bodily injury that has pretty clearly even after want to peel we don't know yet whether it was properly or not that's right and that's what i was getting at earlier today that evidence of the is it makes on a much degeneration was that so that's what we have said and that's what the magistrate judge found dr lee knew at that time and so the question the fact that came up in this case came up in this case it didn't come up before in jenna two thousand and ten that's why we have morning honors then preform on behalf of the city life i do have to take significant exception to everything that was just discussed in the context of what the magistrate judge found first i think it's really important and the piece that is missing in what you just heard was a statement that is made in the judge's decision where are they are claiming that the appraiser claiming that some of this happened after the fact that the first time you heard about any of this was after the denial and the decision had been made that is absolutely not true what the trial court said on page thirteen of his decision and i quote there were objective lee three good faith grounds for the deny and this is if you hear nothing else this is the most important part these and what is being suggested by ws farai is that this somehow kansas city life should have included everything that could possibly didn't happen that didn't constitute a bodily injury and the independent we have all other causes given mr x chronic heart condition and it said three there was an exclusion for injury and death caused by surgery every single one of those reasons was included in kansas city lifestyle letters everyone it was not limiting itself to so minister generation didn't cite that as the only reason in fact in fact at least two other factors contributed to his death precluding the payment of the a t p benefit and then they go on to talk about the surgery and examines the generation and the chronic conditions that mr x suffered from when judge gail looked at the six or seven facts that they are contending somehow dictates a finding in their favor that's completely wrong if you look at paves eleven of the judge's decision what he says read that he's suffered an acute rupture of the tendonitis caused by insertion of fire and that his symptoms were caused by that rupture and the church ribs required all of those things are absolutely true but possibility of any claim that there was an accidental bodily injury council because i am interested in the relationship these that the three grounds you mentioned that are in sort of the court's  and i my first question has to do with the the first ground of coverage acquired an accidental bodily injury and there's some discussion of that and then flipping over to the third ground which has to do with the exemption the surgery and that sort of thing that doesn't isn't there some overlap between those two grounds and so far as the argument between the two sides about accidental injury in other words if the surgery is performed due to an accidental injury then cock haitians from the surgery wouldn't be a basis to deny coverage what if you look back to talks about in a relationship between whether the disease is dormant or whether it's active and whether it was contributed to work or caused to become active by the accident if there was an accident to rely on is exactly what this court dealt with on the first appeal and what this court said and i'll just quote it quite simply on this record jane you would issues of material fact exist as to whether the rupture of the core structure is within mr hex heart brought on by extreme exertion inviting a fire constitute an accidental injury you send it back you told us the jury has to decide whether this  based on that assumption this court held we have to have a jury decide whether there was an accidental injury that's why we went back and that's why we had a jury trial now ultimately going to certainly true but the jury found kansas city life has a reasonable price for denying coverage one because it was no accident and he was the accident in this case ultimately this court started talking about internal force that forces a jury had decided that was there something that was truly an accident and if the court cited those things if i suspect that in rendering that the last opinion in this case the court had some fun whether it's an accident a tough question in this case it's not like the stonebridge case that i talked about earlier where a lady broker or the  using to address the first and second of those in one section in your brief pages twenty eight thirty six and didn't break down do you view those two grounds as being two sides of the same corner no i was just curious why it was presented that way you know i believe that should have been separated and i believe that as i was reading and preparing for this reason to the judge was directly to independently of all other cars well ok you have to my question on that on that score a slightly different one  legal research and analysis and factual investigation it was it just wasn't done in the way it should have been done and i didn't see that addressed in your brief do you want to comment on that i absolutely do ugh they put a spin on it that is unfair and inaccurate but what happened here was kansas city life didn't lay like the senior claims examiner even determine a client as you ordinarily would what they did is they got a panel of five people most of whom were executive v p each at kansas city lied to scuse me to analyze this very point because it is such a difficult issue was there an advancing now as being what the decision should have been made and what the decision actually was made on only got worse as our investigation in fact we hired an expert from temple university who i have to credit judge gale because i think he said what i'm trying to say better than i can say it at the end of his decision and i'm just going to read what he wrote the insurer was faced with a factually and medically unusual case which required a non routine interpretation of the policy the facts presented to and found by casey all were consistent with the medical records and would not have been been improved through additional investigation case the application of that law and the policy language the facts of this case did not dictate a clear single result you'd objected we under the circumstances facing k c l the time of the denial the precluded this claim what casey also said was that there were other contributing factors under the language of the policy that contributed to the to the loss and that's what the policy makers and that there was no accident so an insurance company it's not a winner take all started be able to litigate a reasonable fair or good faith dispute without being exposed to current fees and from day one which we haven't even talk an offer of judgment but from day one this case wasn't about the underlying policy that it's that issue was resolved long ago we offered up the policy limits early on six years