whether or not massachusetts tort law and the remedies afforded under the common law allow for the recovery of post repair inherent diminution of value in other words or alternatively mr martin's is simply seeking to be made whole there still remains a portion of damages this would be post repair inherent diminution in the damages that remain in other words mr martin's prior to the actions of the tortfeasor had an asset rip a certain beneficiary are not presented that case would be the flattery case in massachusetts where the s j c decided that a rd party could bring a breach of contract claim i do recognize as the court also points out that the court did not reach this issue in its decision instead it made a determination that the remedy for tortious action in massachusetts broadly does not allow for the recovery of inherent diminution post repair damages as well as the cost court would have reached that same conclusion stall in question however for the purposes of pleading mr martin's does suggest and he believes the common law supports the fact that he is allowed to bring a breach of contract claim against this rd party insurers for failing to to recover a judgment that you're seeking here your honor as well as with the common law for breach of contract massachusetts common law has established that a rd party intended beneficiary of an insurance contract is entitle to bring claims from massachusetts by violations of massachusetts one hundred and seventy six d even if they do not have pretty a contract with you i'm sure in other words to bring the claim against the responsible parties insure and under a contract which part for example provides that all amounts that would be attainable through tort and settlement or judgment mr martin's is permitted to bring that claim directly against the insurer particularly where in this instance mr martin's did make a subsequent demand and ninety three for a violation of failing to provide the benefits listed in an insurance policy with respect to the court's decision on damages themselves the court has reached the conclusion that there should be and there is no distinction between the remedies a court is for real property versus the remedies provided for damage to property or chattels in this case they refer to or the how is referred to several real property cases these real property cases which the court took its time to latch on to in deciding that this remedy was unrecoverable house so they can guarantee trust case the court says it's both it's both a real and personal property case it is not just a real property case so why isn't the prince particularly if they're also with respect to guarantee trust both the guarantee trust and clean harvest cases were cases that were brought under massachusetts chapter twenty one which is a remedial statute for contaminated real property and when the court can guarantee st trust was tasked with the term and what type of statute there are several sections which refer to items that can be damaged by such contamination as personal or real property it is not the case law was there is not that the judges in that case made a determination that th grow extends to all common law again they were tasked with the language of twenty one easy and what type of damage would be appropriate in fact when looking at this issue of how we determine damages the trinity church case which was the st case diminution in value potentially because there's no ready market can i ask you  central issue in this case is an issue of massachusetts law that's his common law it's a common law which is supposed to dovetail with the insurance regulatory law because you want him surance policies to fit what the common law recovers trial court to indicate that it also believes the certification of this question may be a cloak for it and at least from the appellant's attorneys the agreement was made that it would and may be appropriate for such certification in fact after the decision was rendered in this case and we realized that the scope of the decision extended further into the realm of tort remedies then just those available under par for the automobile policy we filed a motion with this court seeking it to certify to question that he would favor certification your honor as this issue would be an issue that could continue to reoccur in the commonwealth i do believe that binding precedent or decision from yester seat would be appropriate yes thank you counsel thank you what attorney fats and please proceed may please the court good morning arch my name is michael batts and i represent vermont mutual insurance company with me on brief was michael cannon i'd like to jump right into the last question i was asked about certification because i think it allows me to talk a bit about the guarantee trust case and the other cases that speak to the common law and come up to massachusetts and simple question about certification is that it should not be certified because the question has been answered clearly time and time again by the s j c the guarantee trust case is a twenty seven year old case that although it was certified to the s to ask questions about chapter twenty one e it required us j c to do a full analysis of what the common while common law what in the commonwealth now required the s t c to look into what are the damages that are available in real and personal property because twenty one eat addresses both real and personal property in doing so the court laid out the fundamental principle that the general rule in massachusetts is that you can recover where get damage to real or personal property you can recover the change in value of the property from before immediately before the accident to immediately after the accident but where the property can negotiation process of some process if you will which only did not lead to a summit but it's striking to me that is how your client responded again not no no you're not entitle your was response of your client was let's talk me how do you reconcile the behavior of your client with this categorical legal position that you know ok there is no legal  there's two answers to that your honor the st one is that it doesn't really matter what vermont mutual thinks about the state of the law matters is the state of the law i would love it if if my clients could say things are or are not covered are not recover and that would be the standard but it simply doesn't matter for purposes of determining the law having said that vermont mutual and i believe this is in the record vermont mutual receives very few  claims for diminished value i believe the testimony was that in any given year it's maybe a handful if not oh yes but the simple fact of the matter is that it's easier to try and resolve the claims without getting into speech with parties than it is to get into a protracted legal fight do you disagree that fifteen other jurisdictions allowed for this definition of value recovery i don't know if it's fifteen your honor but i do agree there are other jurisdictions that have determined that this is recoverable in their jurisdictions having said that the common law in those jurisdictions or the the adoption  and and before you respond to that is there reason to believe that given what appears to be evolving thinking on damage to automobiles that this would not be something yes j c might want to reconsider did i would say no i don't think that it's reasonable to think that the estrace c would would want to reconsider this or that we should even request that they do so and the reason for that is that when the f c c came out with  weren't they were as widespread then as they are now everyone did even computers then everyone is walking around with the computer in their pocket now oh sir absolutely but the concept of what the forty where the courts talked about the change values of ship that had not been fully repaired this concept i believe actually there is a case from new york that cited in one of the briefs that talks about eat a horse drawn buggy and whether or not its value was last after have been repaired this concept of property being potentially worth less after it's been damaged is one that's been around for for more than a century this book value services the reason they call them book value is because they used to be these big books as opposed to being available online that have been used to value vehicles and for for decades if not longer than that but more importantly when you look at clean harbor which cites the tax trial and yes it is a real property only case but i'd suggest that you know discussing the tax wrong decision it's a political here as well that case talks about it being not as a protection to the value of the b vehicle rather it is about the condition of the vehicle massachusetts common law has always been concerned not with economic loss associated with changing values of cars it has been concerned with the tangible injury to the actual property and so when you look at textron when you look at clean harbors when you look at i still don't understand why that's not a tangible injury to the property itself because once it is repaired it still has a diminished value well there's a loss that the stock covered so st and foremost not all vehicles they get in accidents suffer from this alleged loss in value there's case  talks about that the testimony in the case establishes that if that's true then that means that person has sustained that loss but clearly others it for instance if a mercedes is hit every payor it may not sustain a loss in value but someone says that would be just the opposite well in again this is something  that is squarely addressed by the wording of the guaranty trust decision when it talks about fixing the injury and and it's it's easy to get into this this discussion about whether or not injury means injuries are to the actual property or whether it means injury to value but that's when you get into decisions like harbors where they make clear that it's about the condition of the property and not the value that is attached to the property council i often times do draw on the restatement they have not wholesale adopted it and they haven't adopted cheer but i believe that you can read the text wrong decision as if you had to as being but then a decade later the restatement rd which is certainly a publication it of some seriousness that is paid attention to by courts comes out and so the question before us is is it predictable th massachusetts s j c would adjust its law based on the restatement of rd based on the point that judge thompson made wouldn't that question be one that everyone would be better off to have the s j c answer rather than us because the yesterday she could also decide is a prospect of only retroactive yesterday she would be aware that it needs to dovetail with insurance law i could take that into consideration it seems there's a lot of public policy issues that the us casey would be better suited for and might actually put down want to have clients benefit if you were to lose the case but then it was decided it was only perspective well setting aside what would be more beneficial  different version of the restatement that at least as it as it relates to this particular issue has never been adopted before it's not as if it was adopted previously textron was decided and then we now have a new version and we want to see whether or not they would adopt that to it's never been adopted but this has been the standard in massachusetts for eighty at least eighty seven years if not almost one hundred and sixty years  who should be here but there was no case directly on point is that true i think that is true if you look at it in the context of whether or not there was a case applying textron specifically accident value versus the post accident in never had to get to the nd part about the lesser of the two because that was a total loss but you do have a decision in two thousand and seven team where where a court looked at the application of the tech strong principles to automobiles but having said that there is no decision in massachusetts that says that two prong task where you look st at the general principle and then the lesser of the two numbers were that's going to apply to autos but having said that i do believe that there then you could argue that the law is clear and has been for decades and in that respect judge sailor was as was applying a well established already been decided the lawyer he used then i'm wondering i'm wondering wondering how did that inform your decision to remove this case from state court where the law was so clear and bring it to us there are a lot of reasons why parties would remove cases to federal court why an outside insurance company would want to be with a federal district court as opposed to a state court where it's from vermont versus a massachusetts resident i'm not sure i can really get into the decision beyond that but there are lots of reasons why parties would prefer to be in front of in front of the defense or a bench as opposed to to the state bench which is not to say that there's anything wrong with the state bench there's lots of great judges they do great work but there are lots of different reasons that have nothing to do with what the applicable law is but i would put that around and say that this is you know the appellant has has now and that's gotten a bad result requested that it be certified i've asked the question why have they been all too happy to be in the federal court if at the end of the day they don't think the federal court has the ability to make a decision on they don't have a choice if it's properly have come up with have quite a little bit different from the way we talk about it so just just to let you know what our experiences just oracle experience has been some some of what we've heard has been quite surprising contrary to our original thinking we just call one another up yes i understand it your honor but again i would suggest that this issue as it relates to real versus personal property in an auto is personal honour's biggest disagreements is whether or not the lawyer is settled as brief does indicate we continue to take the position that the real property cases cited by my brother deal with exactly that real property and more precisely that sue primary cases relied upon do you wish the courts task of understanding recoverable damages under that remediation statute twenty one however in fact in the guaranteed or in a clean hear case the court does conclude that there may be instances even with respect to real property where both repair remediation costs and decreased property value may be recoverable again it being a factual determination for the purposes of insurance policies and premiums have been set on a contrary understanding it would seem that would lose the dovetailing that massachusetts presently seems to think it has how do you how should we think about that  all of course thank you just for that i think that st i want to suggest that while this case arose initially and still remains as a chase for a declaration of the responsibilities under that standard policy and i don't disagree that the court has held that we don't look to extra jurisdictional sources for that policy that what we're really talking about here is the common law availability of remedies for tortious conduct and this is not a novel idea i believe a current out twenty five dollars of the states recognizes this form of damage for rd property damage claims i would also suggest that with respect to the premium issue the ability or the need to pay a rd party standard policy sees me that those rights can be limited so if you look at the if you look at the response it has nothing to do with parts or policy it has to do with st party coverage and i don't think that the division was incorrect in saying based upon the given decision when it comes to st party coverage there is not this damage recoverable because you can limit it by contract for inherent post repair diminution about conversed lee the decision or that that point i think that what is clear in the law and the rear is case recently reiterated this is that a rd party who is diminished or injured by a tortfeasor is entitle to be made whole and what has happened here and what has been lost in this discussion is that mr martin still has a remaining damaged through no fault zone with respect to the issue of whether or not premiums are affected again with respect to rd parties the premiums are set for st party coverage there are policy limits put in place with respect to rd party covers so a policy for four for rd party coverage under part or may have a policy limiter caps and that would be the extent of what the insurer would necessarily have to pay under that tort r insurance policy so i would suggest that it does not affect the overall insurance rating process because that benchmark has already been put in place so you're now saying we don't need to certify you know i'm still i'm just answering the questions i do believe that it would be appropriate and that the estrace see may have a decision which is contrary to the trial court and may look at the fact that since the textron decision the law has evolved to understand that there needs to be a degree of equity restatements reflect that because there are issues where personal property despite repair is still going to have less intrinsic an objective value and therefore the person is still entitled to be