summary judgment in light of the evidence presented and the questions of fact raised by that evidence your honors i'd like to begin with addressing a few of the cases that were raised existence of an oral contract that right correct your honor that is the decision made by the trial court you know from that i take it that you never argued that the   mail correspondence was evidence of a written contract your honor it is an unclear factual situation we did not make that argument because that argument is off the table we did not argue in the lower court that there was a written contract because we do not have a document signed by gen co we do have emails from representatives of gen confirming the terms of the agreement under which these two businesses were operating and this situation to me is is kind of a a classic situation where you have two businesses who work together where they speak to each other and then they e mail intermittently where you don't have one document with all the terms laid out and signed so this was this is a situation where we're easy i guess orally communicated by phone there were communications in fact genco acknowledged that because knowledge didn't brief that it was hired by easy e mailing they have that a discussion on by the phone i don't know in general how specifically says via phone but my client says that there were oral communications that jenko again acknowledges being hired so it's i guess said genco didn't just wake up one morning and decide to arrange for the shipments some of this for ever twenty one where i understand there but was there any evidence that the parties had a telephone conversation with a basically agreed to the elements of what was going to happen and then they sent a confirm in email my client testified in declaration that he understood an oral contract existed based upon communications the communications unfortunately nobody was able to testify you know i said this he said that but then we have the follow up e mails which refer to conversations you know saying as we discussed genco insurers what i said to john i was going to use prefer carriers it does that is the specific specific language following the statement we have an agreement un i however there are other emails your honor that jenko authored which say we ensure one hundred thousand dollars of cargo liability my client mr arkell all asked whether he or his business could be put on as an additional insurer he was told by the junco representative that is not necessary the paperwork that we have ensures one hundred thousand dollars in a political cargo insurance so you are correct your honor the words following the word agreement seem to narrow down but when we take all of the e mails together and mr argo was declaration which kind of feel and e no your honor easy received a summary judgment we are summary judgment motion was granted as oracle against oracle oracle promptly filed for bankruptcy and to this date not a penny has been collected my client has paid in full for over twenty one who was the shipper and is now looking to get recovery from the responsible party now genco of course claims that it is not responsible because it had no obligation to get insurance has no obligation for the freight whatsoever once it retained the services of a license motor carrier oracle however that is not what the cases say if we look to three of the primary cases cited by genco in support of its position that it simply has no liability these cases don't support that if we look at traveler's indemnity company versus alliance shippers and these three cases are towards the very end of juncos brief the issue there was whether alliance shipper was a freight forwarder or a broker it was not looking at what a brokers liability was it was looking at whether alliance was liable under the kar amendment which it was not we are not claiming junko is liable under the carmack amendment we're claiming junko was liable under a contract and none of the cases provided by genco undercut that position in fact on the chubb group of insurance companies cases case scuse me group of insurance companies versus ha transportation systems case specifically provides that brokers may be held liable under state contract law so there is nothing that novel that we're trying to do we're not trying to create a new type of liability or simply applying state contract law to this agreement admittedly your honour's the agreement is convoluted and is not nearly as clear as i wish it had been like i said there is no writing setting everything out but if you look at the totality of the evidence we believe that he's emailing at a minimum presented material questions of fact that preclude the granting of summary judgment in this case so your i guess the i'm still concerned with the district court did here the way the district court viewed this this you were basically said there's no evidence there was an oral communication is your argument that the e mail transmissions are tantamount to calling somebody up on the phone and having a discussion with them is that your argument the e mail the e mail transmission evidence the fact and in fact refer to discussions they are discussions in the way they are used as you read them between the parties they are a back and forth they are the equivalent of a telephone call given to cases that say that you know you're on the couch again this is it is the way companies do business which unfortunately does not fit neatly within the parameters the morning your honour's may please the court edmond farrel appearing on behalf of apple e genco transportation management your honor on the record in this case it is abundantly clear that the district court was correct in holding that there was no evidence of an oral contract between these parties and that is what is being sued on there were other causes of action brought against my client in the initial complaint which were dismissed by way of a twelve and six motion and are not the subject of this appeal in the first amended complaint we are left with an oral contract cause of action the district court was correct in finding that there was no oral contract formed or no evidence of the formation of an oral contract in this situation terms between between the parties they don't if you put them all together do they add up to an offer an acceptance i don't want them so your honor because there are negotiations going back and forth you can see that each of the e mails are addressing specific facts not the totality of the agreement between the parties to the e mails contemplate a signed written agreement at some point i can't tell you that your honor the record isn't clear on that on that at all and it certainly does not support their contention that there was an oral contract formed between these parties if you think email communications conserves can't amount to an oral oral agree no you honor i don't i think it's a written communication and we have a new law that e mail and this is a contract by e mail well that i don't think that's the issue before this court right now well we're talking about an  contract between the parties well what is the scope of jangles responsibility to get what's going to be paid to do to get a company to transport the goods and to have a certain amount of insurance coverage for the load and there you go your honor i mean if you want to step back and go take another look at what the breach is there is no breach you look at their person most knowledgeable who testified she says genco didn't do anything wrong there was no breach they got the carrier that had the insurance the fact that that carrier's insurance company denies coverage because of a certain exclusion in that policy does not mean that my client genco breached any agreement between it and easy mailing but look at mrs lopez's deposition testimony genco did nothing wrong period end of sentence end of report end of case genco did everything it was supposed to do end of case though even if your honour's were to find that there was possibly an oral contract which i am not saying that there was there certainly is no breach in fact the evidence is directly to the contrary now they came back in after the fact and tried to change mrs lopez's testimony from yes to no to yes they did everything right to know they did everything wrong we filed objections to that change in testimony and that objection was sustained and the briefs of easy mailing do not attack the court's ruling on that objection to mrs lopez's deposition testimony so we're left with genco did nothing wrong unless the court has any other question was oracle's condition i have no idea your honor i have no idea i understand that fair and bankruptcy but i do not know what what their position is  carrier that's correct your honor on an exclusion because the driver left the load on attended very complex picture you're saying your role was limited to be the go between between easy mailing and oracle back to you that's what you were getting paid to do just to go out and get a carrier who had a driver and acknowledged that jenko have the obligation to get a carrier with insurance of a certain amount that amount was one hundred thousand dollars the policy your honour's have asked questions about the exclusions but the most important thing in the policy is there's a sub limit the sub limit applied to this very shipment which was known to everybody to be clothing it was wearing  apparel there was a sub limit that required that made this policy fifty thousand dollars not one hundred for this shipment which directly breaches the agreement that council just acknowledges of insurance the certificate of insurance does not it is just evidence that there is a policy genco took on more responsibility to make sure that policy was one hundred thousand dollars to this load the case law is very clear that they cannot rely on the certificate to do that with respect to the pm case testimony if you look closely at the actual question the question look out information discussed with an attorney the question was limited it was other than what was discussed or told to you by an attorney the witness is a lay witness and cannot be held to know what she can state and what she can't when the question is convoluted and limited and finally your honour's genco stands before you claiming that there was no contract yet it was hired to do a service it did a service and i can assure you that if my client failed to pay junko genco would probably be the first one correct the trial court found there was no contract in our position is that was error for two reasons one because the evidence showed a contract and two because there were significant questions of material fact ok thank you counsel  arguments this morning the matter is submitted