as alleged in mr hansen's complaint the shop cannot completely restore his modern car to full restoration of preclusion condition without conducting a digital scan of his car digital scans are the only way to  i gather from what you just said in response just notion that it wouldn't be enough if i just subjectively thought you know i really am not going to feel driving this car unless i know for sure that these systems are all intact and notwithstanding the fact that neither the manufacturer is recommending this nor the repair shop i just won't be able to sleep at night unless i get right on i gather you're saying that's not enough correct ok so what is it that you then need you know the car owner is it that  tasked with deciding with interpret in the term repair under oregon insurance law in our view of repair is that an ordinary purchaser of insurance would understand repair to mean necessary contract law under oregon contract law or in courts interpret repair under policies such as this when i've written one restaurant to mean restoration but you don't know that it wasn't a risk there's no way to know that it's been and i think geico is position is we're doing whatever you know is the standard and we'll hear from geico exactly but the will will do the standard due diligence and then we'll repair it if if your client took that car out and a week later found out there was some circuitry that was out of whack i assume he could take it back and if they could trace that back to the collision that geico would probably repair that because it would  been discovered as but the question here is how much due diligence does geico need to do in order to find there's always something more they could have done and i think that the important term that i heard your honor use was standard due diligence and i know that geico says that they're doing standard you do and our position is that under oregon law when you look at terms from the perspective and of an ordinary consumer of insurance  ordinary consumer of insurance would assume that repairing the car would include diagnosing what's wrong with the car circuitry but that's what i was trying to get out before is the key elevation in your complaint it's because the manufacturer 's not an adequate repair we look to the bush decision by the oregon court which says that damage under a policy can include diagnosing what's wrong with the insured property and then i would say and  then not and then it's not just the fact that the manufacturers have said that this is required it's why they said it's required it's the logic because if you look at the different position statements all of them say oh you have to use our healing you you can claim that even if they don't breach the contract as long as you don't fulfill the expectations of the parties upon the contract and in oregon you don't have to have a breach in order to have the breach of good faith and fair dealing or at least i understand you don't and i'm going to ask them for a correct about that so it seems to me that your car toward concept about what it that would still require reasonable contractual expectations i'm not sure that it even if it doesn't require a technical violation of the contract it would still require some expectation the parties have under the contract and so i'm trying to understand why your client the same question in a different way but what made him believe that a scan was a reasonable expectation in these circumstances that the lights not on there's no mechanic that stepped forward and said we needed to do this to bring it into full compliance judge nelson under oregon law organ courts have said that industry standards can inform what is a reasonable expectation so it comes back to the manufacturer's recommendation and as you said the reasons behind them right that can the manufacturer ok that's interesting so you would your argument be that the manufacturer can't therefore amend the contract because that i have a problem with that if you say that you because a contract doesn't print does not assume they are going to look to the manufacturers recommendation but your position would be that the manufacturers rx recommendation in yes that the manufacturer expectations can inform what is a reasonable expectation and then that just ask the question of whether those expectations contradict the expressed policy terms never ever pay for those you know as as has become seated in the record there are as part of a repair i'm so so it is covered by the contract language you can't take the position that the contract language excludes the pain from the the contract lever language focus on damage to the ok so let's say let's say that that the scan is necessary to determine whether there has been damage to some of the car and it's definitely not visible the as your opponent is alleging the only way to detect it is to do one of these scans and let's say that the manufacturer says this is absolutely essential to do one of these scans because if you don't detect this damage you know it could lead to some kind of fatal accident later one we don't have the repair shop as as your honor is noted to not allege any additional damage to that's the operative language to the to the vehicle but my hypothetical was that we were trying to figure out is whether there has been damage and we they don't have to have their car repair we reimburse for the estimate that they get on their repair so in that sense as judge mosman correctly pointed out the duty under the contract for the plaintiff is the present the damage to the vehicle that's when our duty kicks in ok so equation precedence when do you pay i don't understand the skin is a it's a detection mechanism it's not a repair of anything it's trying to figure out what needs to be repaired so what are the circumstances when you will pay for a scan i mean that they're not in the record before you i don't know what the circumstances are but we pay for see if there are circumstances when a repair itself when the body shop says the repair itself needs to review the scan for example you're out whether additional work needs to be done right if the scan doesn't fix anything that's my problem with your position it's not like it's a repair of something it's a preventative mechanism to determine whether additional repairs are needed isn't well again we'd go does not repair the car geico reimburses for the damage to the car or boss of but in this case it's really a damage to the damage to operative language that there is no alleged on the record here before your honor and what's been brought up on the record before judge mosman and there's no even suggestion otherwise there's nothing presented saying that there is damage to condition precedent you guy goes and your position is that you will never ever pay for a scan right that's not the position then they tell me when when would you pay for a scan i just don't understand what you're not going up when it's when it's part of what we would pay for the scan assuming that the repair shop presented a legitimate reason for doing the scan but in this particular instance so that's the key thing that's missing here is that the repair shop that he took the car to didn't recommend that the scan be done no no i mean i don't think that's a key i think again the policy says damage to the key thing here is eighty he's not claiming we didn't reimburse him for the damage to his vehicle and b is not saying that there's any unrepaired contract can you breach the covenant i suppose i suppose that's true but in this yeah but just a minute not only suppose it's true klamath off rip off project water users says is exactly true as one as long as go ahead as long as it doesn't contradict the express language barrier so tell me there's nothing in the express language here that says you shouldn't have done a scam there's nothing  do pay for scans and so it could be a reasonable contemplation of the parties that you would do scans every time to make sure that the damage has been repaired why is the fact that you haven't done that then not a question of fact as to the breach of the covenant of good faith and fair dealing here are two reasons the operative language as a coverage is not the repair language minute nonetheless go back to last go back to damage to determine the amount of your loss and your damage in this contract somebody has got to make that determination there's nothing in this contract says who determines it or how it's to be determined and therefore there is nothing in your exclusions that says you're not going to pay for these scams and you admit you do pay for these scams when you think they're necessary so why isn't it not at least a question of fact as to whether you have breached the covenant of good faith and fair dealing does even if you have not breached the contract because the plaintiff has not presented a circumstance that the only way to say that there isn't any more damage and therefore it's a breach of the covenant of good faith and fair dealing i think you've mistaken his allegation he just he wants a just in case can't he has no idea and does not allege that there is any on my behalf that there wasn't damage we don't know it does not do the scan he had the choice of who does it it's a matter you were contracted to do it to pay for the loss and the damage to his vehicle that's  suggesting except that he's suggesting that we have to pay that the coverage is for repair the coverages for the damage to the vehicle those are two different concepts the limit of liability is the repair language  issue here is whether he has presented damage to a judge mosman had a completely correct below let me go on further why didn't judge mosman low him to command because under his theory of the minute they had a chance to put this theory up and judge mosman said under this theory you've got no theory but maybe you would have an amendment to make and he could go to e scan for himself and determine there was damage and then he could come back and he could have man he dismissed with that with prejudice based only on his complaint were there any other amendments ever know did do ever did they ever get a chance to a man no but he threw it out i disagree with your honor that i would have a game to a man they did not see we argued that it wasn't covered they did not seek an amendment even though they did not seek is the oregon law that is if you do not seek you throw it out well thank you i mean nobody even talked about a judge last one just says i'm dismissing this with prejudice didn't even give him a chance to talk he didn't never say it and you never argued it and frankly judge mosman then says with prejudice counsel and let me ask you to maybe give you something to hang on it seems to me that hansen has made a pretty strident argument here  he is pretty determined to force geico to pay and we can suppose why he's a mechanic of his own he would love for geico to pay for all of his clients scans it seems to me that hansen had a pretty strident argument and was banking at all on forcing geico to pay for this under the contract and and his counsel can can dispute that but i'd be interested in your view because that seems to me as i was reading this why the judge below did not allow amendment is because hansen was kind of taking an all or nothing approach in this case i feel your way judge nelson was the answer my question but i wish you would i'll try to address both points yeah i think they made a tactical gambit but you'll have to ask them what their intent was they did not seek amendments in their briefing they did not seek in an argument they did not move for leave they did not seek amendment in the st brief here they only sighed amendment in the last two sentences of this of their reply brief here and they don't tell us what that amendment would look like they didn't give judge mosman a chance they took a very specific theory of the case judge mosman and judge mosman correctly said under that theory of the case and their theory continuing today that theory of the case there is no amendment that would fix now i have no idea as i said here and we can't if you're putting an impossible burden on me to guess what their amendment would look like but i have no sense of how they could fit their theory of the case and particularly their theory of the class action that they a e i think it was a tactical gambit i think that they waited too long to propose what their amendment would be i think they waived that at least once and state court i believe twice but at least once in state court i think they've waived it under th circuit present by not putting in their initial brief and this court can ask a more fundamental question are there even any damages played here and perhaps that doesn't take away their right to amend to add damages but i don't see any damages actually pled they don allege that the their premium that they didn't get what they bargained for in their premium they don't allege that there's any damage or loss that was not covered they have a hypothetical claim here on what potential damage could be isn't that  just a basic way we could resolve this case correct your honor and you know you said it better than i can say well they're obviously they're seeking to recover the cost of the scan that you wouldn't pay for but the scan is not the damage to the vehicle right but it's a necessary component  go down to collision means loss which is a sentence three right then lost means and paragraph sentence eight for section eight right the bottom of that page director accidental lots of or damage to insured auto and what they want to that's the coverage section that says if you look at the topic as about damage coverage what there's what they point to if you go to mars i don't care what their point i'm asking what you're pointing to so that's this is it that's it and so tell me again why do you ever pay for scans because that when there is there are occasions when there is damage to the vehicle that relates in ties to the scan that's not like the let it give me an example like what the airbag deployed as an example and then well what about the engine light being on well to be candid engine light might be on if there's an accident but most of the time that's just and there's no damage right there's no damage in that scenario you're trying to figure out whether there is damage that needs to be fixed so why would you ever pay for the skin under your reading of what loss means there again i think the example i gave you when the airbag deployed there is typically damage for the airbags to come back on and and for that it's only for warning light comes on and says extreme hazard you know if you don't check this out you know something catastrophic might occur there's no damage in the sense that we can figure out what's wrong we need to do a scan to figure it out you would pay for it right with all due respect they don't allege that the warning lights came on ok i'm just asking a question if a light came on and the manufacturer said when this warning light comes on you damn sure better do the scan because that's the only way to figure out whether some catastrophic failure might occur and end but looking at the car you cannot determine that there is any damage to any component that here i'm asking you whether your company would pay for that that's all i'm asking i don't care what they allege for this for purposes this question i'm trying to figure out what you think this language means because you said sometimes we pay for a scan so i'm just  set hypothetical unlike the allegations here sounds like damage to the car where the light is out why is there damage to the car just because a light has come on that the car's running fine there's nothing anyone looking at that car cannot say oh yes this component is then your hypothetical we would not pay for the scan that it would not have been running fine you would not pay for a scan when a warning light comes on and says catastrophic failure ahead unless you get this checked out and you would just say come back and see us after you have this fatal accident and then we'll see about whether we need to repair that's not a reason again your honor i think you're confusing our views our duties not the repair the car if that wasn't a collision in your hypothetical that caused damage to the vehicle there wasn't a light came on and but in terms of the component that it's warning you about there's not enough no damage you can see that's why the scan is necessary to figure out whether the damage is hidden right i think that we're getting beyond my mechanical at paragraph one thousand of our complaint mr hanson was told that geico would only pay for a scan if a warning light on the dashboard was illuminated but if you look at paragraph eighteen of our complaint we allege and we also reference the manufacturer statements to the fact that dashboard lights are not indicative of whether there is complete it whether there is damage to the car that would show up in official scan if geico wants to have it if only wants to pay for digital scans when there is a warning light on the dashboard they are free to add that as an exclusion in their policy but that is not in the policy the nd point that i would like to respond to is repair is the operative term in the contract under oregon law if you look at the oregon supreme court decision the court in that case was interpreted ng insurance policy terms identical to the coverage here and the court focused on the fact that when there's when looking at whether there is damage to the car and the insurer decides to repair to pay for repair repair becomes the operative term the rd point i would like to respond to is that geico keeps saying that we never alleged any harm and any damage that wasn't repaired but if you look at paragraphs three hundred and forty one and forty eight we allege that damage indeed went on repaired we don't know specifically what that damage is because you can only identify that damage by doing a digital scan and judge smith you  asking about amendment to the complaint after mr hansen's complaint was kicked and he realized that geico would not be paying for the scan this is not in the record and we would amend on remained if given the opportunity to do so but he did go and pay to have his car scanned and he did find that there was damage to the car and certainly that is something that we would add to the complaint on remand the last point that i would like to raise your honour's is just that the good faith and fair dealing what is a reasonable expectation under a contract under oregon law it's a question of fact for the jury thanks very much thank you very much because just argued who submitted