and how can that possibly be the case when their decision is exactly the same as the decision by three other federal judges and it's bemis view how can the mere act of deciding i view coverage one way or another be affirmative act for me to misconduct under the circumstances how in the world is our decision on hover it have anything to do with a separate question of whether the insured met their own legal duties to present the clay we're giving our view upon that claim which is presented he's got to present the claim if he disagrees with us he present that preserves his claim presented congress at section four hundred one nine of the act delegated exclusive rule making authority to fema to make these rules for claims adjustment and has to be by regulation and it's in the policy which is a regulation it's an article seven j of the policy lays out for everybody these are the rules these rules have to work whether we're dealing with a small incident of maybe ten thousand claims already magnificent huge incident like sandy or katrina where you have one hundred fifty thousand claims and they have to work uniformly all across the united states what the lower court did with all respect is  for females as to what ought to happen he decided that what has to happen in every claim is that every adjuster has to write up all of the flood damage whether it's covered or not the problem with that is if every adjuster has to do that that's going to terribly slow down the process mr dixon with all respect only cares about himself we need these independent adjusters to get his claim written up and they get to that next flood victim there are thousands of them waiting to be helped if he wants to present a claim for something beyond what the trained adjustors thinks is written up he can write that up my god he's a lawyer uphold the strict rules all across the united states for almost thirty years then people who are not users you have cited no legal authority most or your answer is i don't have legal authority for that it's a gut feeling turning  of the problem where in this record is there any evidence of misconduct by my client they performed exactly as they were trained to perform breach nowhere in the court ruling does he lay out what ought to have happened he didn't go into femurs manuals in a famous regulations and say ok these guys didn't follow it fema told them to do he just go straight to  e this is wrong well if every lower court judge everywhere in the country all could do that then we'd have you know uniformity of decision and we'd violate the appropriations clause in our briefing at page thirty four of the opening brief and beginning at page twenty three in the reply brief we go through the district judges six factors for determining affirmative misconduct and we explain in detail why each one their own debris or mixture it is it is not known debris that was carried with the flood so everybody is in agreement that this was not mr dixon's property spilled forth from inside his house onto his property this is stuff that was carried with the water onto his property which brings us to the coverage question congress at four zero one three a of the act told fema you make the rules on the scope of coverages what risks you take and what you're not going to not take it there are all kinds of risks that do happen to flood victims that are not covered in the flood program basements very limited coverage elevated buildings very limited coverage labs that get cracked flood limited coverage not only debris no coverage it is a rare day when a flood victim is truly made whole by the national flood insurance program it just isn't designed that way here you've got the clear statement in the policy that land is not covered you then have become over its says we will not pay you for non o and debris unless it is on or in an insured property well lo land all round the structure is not insured sure it's property but it's not insured property this isn't like your homeowners policy or your auto policy all that is insured or the four walls of your dwelling that is it and i would ask the court to ponder the cost of doing otherwise you can't have a circumstance where the flood gets to the dwelling but for going over the land so in every single flood claim if the courts rule on no under vs if i pay the u treasury is exposed to all damage that occurs to all land around the house that will apply to every flight plan are there is there essentially one flood policy measure on it and then is it well there's policy and literally l all millions and millions of people that have flood policies they all have this exact same policy so a ruling as to the scope of coverage is a big deal glean from that there are but the holding we are asking of your honors today is a complete reversal of the lower court that mr dixon did not present his proof of loss there's no misconduct here he was told well before the deadline for approval was running that we were denying his claim he could have proven or proof of lost if he wanted there's nothing in the record that we somehow prevented use that that's at is it is correct i would point out though we deny parts of claims all the time would be insured if they want to challenge that claim denial they submit their proof of loss we evaluate it they may be right a lot of times it will look at weight they're correct and then the claims paid if we disagree to preserve their claim and have a court look at it they've got to get that proof of loss and with the require documentation by the date if they do that then they have the right to invoke the right to sue clause of the policy and come before a federal judge and ask him to grade our paper but to come before you they've got do their stuff first raised by counsel one is where in the record is there evidence of misconduct well it's throughout the record but you need look no further than page one hundred eighty seven of the appendix filed by the appellant to find that their letter september twenty second two thousand and eleven says please be advised the following list of items we have found we found are not covered and then later in the letter it says you have one year from the deet of this denial to file suit in the u s district court in the district in which the insured property was located at the time of the loss there is nothing in this letter that says anything about a proof of loss for american bankers insurance company of florida's adjuster who they say was in the record it doesn't have any space to add anything it's typewritten by the adjuster what about the language in that informs policy holders that the work of the adjuster is a courtesy and not to be relied it's the fact that the insurance company sent a letter saying if you disagree with us you have one year in which to sue and that's exactly what we did we did exactly every single step that the insurance company told us to take we took and when we file suit they defended it on the basis that we shouldn't have listen to them we should have not trusted a thing they said because they were lying all along and that's just not not the way to run insurance business is not the way to run anything so if you get if you get prints there other then in upon the dwelling has been required to be covered there are i haven't found any any certainly there are no decisions binding on this court and i did look in other circuits and i found nothing that says whether or not specifically for a very long the safe that it's probably before it could trina i would think so your honor and i do know this much whatever happens today will have an impact in the future because certainly there is a great amount of debris removal to be done from hurricane sandy that was a debris storm more than anything and so the question is is removal of non own debris and mr nielsen misspoke and i don't believe you intended to you said that there is debris and that's that's not right what the coverage says it's actually quoted in that letter at page one hundred eighty seven of the appendix is we will pay the expense to remove non owned debris on or in insured property and own owned debris anywhere so there is coverage for non owners debris it's just a question of where it's covered for removing it and insured property here is ninety nine twenty two island road bismarck north dakota that's the address from which the debris was removed and there is nothing the argument here that the insurance companies made is that we do not cover any of the following land well the problem is that we're not asking for coverage for a land we're asking for covers to remove non owned debris from the insured property and it's that simple there there is coverage i would like to point out something in their reply brief the american makers insurance company in florida raised the issue that we the op helli raised for the first time on appeal the possibility that the treasury might not have to pay this claim or it and i did raise that and there was a reason that wasn't raised below because the first time that anyone said that the treasury would pay the claim was in a motion to waive the super city of spawn on appeal filed by american bankers insurance company and that's their argument is that it wasn't raised until then so we can't decide to say well my client doesn't have a judgment against the treasury my clients have a judgment against the insurance company and if the insurance company has a judgment against it it's between the insurance company and the treasury treasury it's not up to this court it's not up to me it's not up to anyone in this room it's up to the insurance company to negotiate if they want to be paid we have a judgment against the insurance company and no one else and certainly if the treasury were implicated that should have been brought up in the lower court by by saying there's an indispensable party that's not here we need to fill that chair and get someone from the government here to defend the treasury it wasn't an issue until the appeal and the crux of the appellant's argument to this court is that because treasury dollars are at stake the lower court court must be reversed because there can't be a stop against the treasury but that's not what we have we have a stop against an insurance company that deliberately mis stated how to proceed with this claim in writing to the insured the insurer did everything that they were asked to do by the letter  and that's the most clear version of the statement your honor there is other evidence in the record that these things were said in person and by e mail but this is by far the most clear evidence of that in a statement and there is nothing in the record indicating you should file a proof of loss claiming this additional item the only place to find that is in the femur regulations and the people that know the femur regulations better than my clients would be that trained adjuster who trained by fema to handle these things and that person didn't bring it up if you have a trained adjuster and i'm not saying that there are some special fiduciary duty that that adjuster had but certainly everyone owes a duty to everyone else not to deliberately mislead them to their misfortune especially when that the person doing the misleading is doing it on behalf of an insurance company for the purpose of avoiding  brief this is not a case where my clients were not entitle to have to the coverage and they're trying to get something they worked entitle to this is a case where my clients were entitled to the coverage and they were misled to avoid getting it and there's a big difference between those two things were any inquiries made as to what was required in order to obtain coverage or in in benefits for debris yes your honor the remain in the answer is found in several forums but most clearly at page one hundred eighty seven of the appendix my clients wanted to know we want this debris removal covered it cost us a lot of money to take all this debris off of our yard so how do we proceed with that and what what what what's the communication that went from your client to the company your honor i i don't have enough time to scour the appendix at this time but there were e mails exchanged between my clients and the company that are found in the and those are generally exhibits to the affidavit of my client which begins around page i think it begins around page one hundred eighteen one hundred nineteen of the appendix and that page one hundred eighty seven is part of that it's one of the exhibits number forty five to that affidavit and that contains the evidence that was before the district court much of it and also before this court and the chain of communication other than oral communication by telephone or in person of course is omitted although there are some information in the text of the affidavit itself explaining that but most clearly the response is you have one year from the date of this denial to file appropriate for the insurance company and it wouldn't be appropriate for the treasury either the federal government cannot engage in that kind of misconduct but we're not here against the federal government we heard we're here against american bankers insurance company of florida which is not the government they are subsidiary of another corporation these are profit seeking entities they are subject to the judgment of the district court i have about five minutes left i don't have a terrible lot more to say if there are more honor i don't believe that they did and i also don't believe that there's evidence in the record saying whether they did so i can't answer that question to the court but i'm lucky i live on a hill so i don't have personal knowledge of flood simply has to tell the truth to insure about how to present claims that the adjuster things are not covered and that's what we're asking for the adjusters to do and that's what the adjuster in this case did not do it was  employee american bankers i don't know your honor i believe that the adjuster was an independent contractor hired by american bankers to just claims in this region american bankers is a large company i have  when i was researching i found were these no your everyone involved in this case is a private individual or a private corporation there's no government agency or agent involved anymore in this case that i'm aware so in some nation there was coverage for this claim my clients are entitled to payment for that coverage but much more importantly american bankers insurance company in florida is not entitled to defend a claim made against it on the basis of a procedural defect that it created by informing my clients in writing of what to do and then punishing them for following that struction coverage y your honor i'd be happy to be in the policy that says we will pay the expense to remove non owned debris on or in insured property that provides coverage then we look at the exclusion and the only exclusion that american bankers insurance company in florida has identified upon which they are life for denying this coverage is we do not cover any of the following property calling items six is land land values lawns trees shrubs plants growing crops or animals none of those things is what we are claiming coverage for were claiming coverage for removing debris from the insured property at ninety nine twenty two island road bismarck north dakota that's the property identified in the declarations of the policy nothing in the declaration says the building at ninety nine thousand and two island road it says ninety nine twenty two island road is hardly any part of the debris that what was on the house or in the buyer are my knowledge is that to the best of my knowledge no the debris didn't make it into the house due to a valiant effort to fight this it was a deluge more than a flood this was a flood that didn't come up crest and come back down this is a flood that inundated the entire area for a long time forty fifty sixty days and my client had to reach his house by boat by air boat that was the only way to get there because the entire area was inundated you can even find online pictures and video even of the house next to my client's house being spun off of its foundation into the river it was a devastating and long lasting flood that deposited a great amount of debris but i don't believe it deposited debris inside of the dwelling thank you my limited time just a couple of spots of points counsel ask you to look at page one eighty seven of the record i would ask the court to look at one sixty nine a letter from just one week earlier where the adjuster specifically told mr d extended the proof of last deadline by sixty days so when we sent that denial of claim letter he still had time to get his proof of loss in and look at the e mails at the appendix in one seven two one seven seven be just or didn't tell him you still can't submit a supplemental claim this was discussed between them counsel can't answer the question what is the lie what is the statement he finally admitted what he's really claiming is a failure to inform because there is no lie in this record but he was informed by is informed by the regulations and by these letters issue of federal funds was raised in our answer and everything we ever filed that is one thing we tell federal judges from the get go to say that that was never raised in this record it's all over the record the coverage question the parameters and the scope of the insured property one's got nothing to do with the other the policy expressly states separate from the exclusions that the land is not covered and to say that he's not represent virtually all of these companies never heard of anybody paying what is being asked for here this is always a definitive no consistently across the country the adjuster is not an employee of the company he an independent just are retained by an independent adjusting company that is separately paid by fema on a separate fee schedule fema pays for these adjusters fema pay a train's the adjusters it is fema that tells these adjusters their marching orders and what they're supposed to be doing not the companies you don't have one hundred different charts companies giving thousands of independent just there's all different marching orders we've got one generally is the director of claims at fema he's in charge of the rules and terms of buying the policy you can buy the policy from anyone of any number of different companies and from theme it's going to be the exact same terms of the policy  and it's going to be adjusted pursuant to the exact same rules if mr dixon had bought his policy directly from theme the exact same thing would have happened without any change whatsoever we would like to think we get better service but legally everything is exactly the same might the court have any other questions ron thank you both very interesting case