morning everyone and welcome our thanks to the court staff and the council for their flexibility in appearing virtually for today's arguments a word of love warning or perhaps  comfort if we do run into technical glitches which we do occasionally and will not be counted against councils time and will make adjustments as needed the st case for argument today is cody kristofferson versus american doctrines namesake d c court of appeals vs feldman is still good law i would submit that the facts and reasoning envelopment support an argument that a state court judgment does not have to be the result of a traditional adjudication it was no trial or judgment in feldman nevertheless the supreme court concluded that was immaterial according to the supreme court and i quote the proceedings did not assume the form commonly associated with judicial proceedings but the form of the proceeding is not significant it is the nature and effect which is controlling under wisconsin law a resort or results in a de facto judgment that the building must be torn down practical purposes and not to a judgment because if you don't feel it within a thirty day period of time it's binding just like a on appeal circuit court judgement that's how i would answer that your honor this was i confess i have no idea what ric or feldman has to do with this case you're the defendant neither you nor the defendant is challenging raise order the raise order was issued the building was destroyed and american insurance policy when it's for total destruction where is there a challenge to the raise order by anybody let alone by a party invoking federal jurisdiction wacky county perhaps my colleagues may have some other questions on that subject but let's assume we have jurisdiction can you identify for us in the record the actual payments that were made to mr christofferson your out of the record shows that one hundred and forty three thousand dollars was paid under the nd policy and that under the  thousand dollars your honor was paid early in the case and it was separate and apart from the claim twenty thousand dollars in water damage that remains to this day on paid ok but that was part of the eleven thousand that was paid correct that two thousand that's correct ok i also think it would be appropriate at this point to  address a question i think is implied with what you've been asking your honor thirty seven thousand dollars was not paid under the st policy when the st tree fell on the house and there were a number of other payments that were not made thirty seven thousand was not backed up by any receipts correct so those are repairs that were never actually carried out those repairs were not carried out the repairs were the value avoids a month or two after the assessment was made of the estimate was made i know that opposing counsel will state that they didn't find out to december rd that's a disputed fact your hon so we maintain the thirty seven thousand dollars was not paid under the st policy we maintain that the cost of tearing down the building has never been paid the l t that was due for twice at least and you did i didn't see anything in the record that they are your client had actually provided a yes i with those receipts  handled by a different company in your honor and they admitted that these receipts had been received because they did in fact pay for the elite over payment of the ele but you're seeking breach against a s i for not paying an eight i asked your client for the receipts at least twice maybe more but at least twice and i didn't see anything supporting that your client responded to specifically asked for a receipt and i didn't see anything supporting that you sent those receipt why does it matter anymore whether how much damage was done by the st tree if you're not seeking double payment which was what i understood from your very well your honor we are not we are not  why would it matter if they paid for the total destruction of the house your honor we don't think they paid for the hand we don't think that we paid for the total damages due to the plaintiff in terms of  also think that the damage is done under those two policies it would require a jury to tell which one went damages were done when but the thirty seven thousand dollars w the st policy and was never paid kit and is it with respect to the labor that mr kristofferson put into tearing down the divine for the kelly i thank you judge it this is time to mine i represent the american strategic insurance company i will refer to them as a s i during the course of this conversation i think i will start with a brief  on the very narrow ricker feldman doctrine is limited to stay for losers with state court judgement in this case there is no judgement there is no in addition to the earlier payments that were made that provided a compensation to mr christofferson for the total loss of his home and incidental damages that were provided in terms of claims that were presented mr christofferson has alleged and i'm not entirely sure i understand the argument that's being made but somehow all of those matters require conditions with respect to the recovery the cost of repairs must be based upon actual repairs you have to provide receipts you need to show that you did something plaintiff argues that mr christofferson argues that it was impossible for him to accomplish that but impassibility doesn't apply to a condition in the policy which says if you if you do this we will do that the opposite is also true if you don't do this you won't get that so repairs are only is unable to advance the money to pay for those repairs what happens well i can't tell you what experience there would have been in this particular circumstance but i can tell you that generally  industry would send somebody out to determine what the repairs were that were necessary and what the costs of those repairs would be the industry  set aside the funds to accomplish that they may actually pay as they go along but they would work with the homeowner and central the so that has been my experience with respect to gas challenged homeowners whose are and i ask you to address some of the procedural issues that were raised  out for us the earlier situations or stages in the case in which you think point if you had an opportunity to end should have identified those alleged breaches before you filed your motion for summary judgment yes we've brought out a motion with respect to discovery that was proposed in the case and relied on the pressure arced decision been adjusted during the course of the early process of the court made the decision that you can't just stand on the allegations of your complaint and that being told that they needed to find a breach in the contract in order to receive their motion for reconsider reconsideration again failed to raise any contract provision  that they felt they were entitled to so on those two occasions when they were instructed that they needed to provide some kind of analysis of the insurance contract to lay out in this case including the pavement of one hundred and forty three thousand dollars which was the undisputed losses in the case we felt that we could draw the conclusion from the payments and the statement that we paid everything that we were supposed to pay under the policy and that all of those payments satisfied our obligations in the policy so we raised the issue consistent with the approach that we had taken in the case all on we had focused this case on a breach of contract the procedures that we adopted were intended to focus this case on a breach of contract and our conversation on all occasions was tell us what the breach of contract is and then when we finally get them none of them are in fact breaches of the contract then answer your question i unjustifiably delayed payment could wind up supporting a claim for breach and potentially bad faith imagine the insurer not having a good basis for refusing the payment and waiting basically until they are served with there are egregious activities out there that are tantamount to denial of the benefit but i think that's the touch tone in wisconsin whatever s only he said there was only that would be an outrageous breach that only becomes relative or dealing with bad faith and we have taken the position that made it clear in our motion to reconsider with breach of contract with the basis of your breach of contract argument at that stage in the litigation that there had been a delay in the payments well in the district  motion to reconsider was that there had been a delay in the payments your honor the the delay in payments is as a major concern for us we were never allowed to take any discovery any meaningful discovery here and that's not accurate because although the court of originally didn't give it to you once the summary judgment motion was filed you were allowed to take discovery you just didn't get we were st time as you had hoped for well  true your honor we didn't get very much time at all we didn't get our two had discovery and had the opportunity to conduct your correct your honor but it was only at the last minute that we got discovery