shorter advocates for this hear lloyd and i'm here on behalf of todd and michelle borchert in their daughter danielle shaver we come to the court asking that your honour's reverse the judgment of the district court against the in favor of state farm on the ground that state farm will fully failed to prove one of the elements that was necessary for the insurer to obtain a judgment in this case specifically they presented no evidence at all either by document or by testimony that the misrepresentations that the jury found that were made were material to this particular claim and this is an unusual set of fa and what's the case that would make that i'm a failure prove fatal failure proof your honor there's several it's the johnson case from minnesota that says from the minnesota supreme court that says that you don't  presume materiality that basically a misrepresentation of an immaterial fact that they were there of course is immaterial fact and you know a statement of loss in an insurance claim is inherently material right i mean and if you have items that you've made a statement  exist and significant items totalling thousands of dollars isn't that material per se and if not why not well it's not because of the unique set of facts in this case your honor and that is that when i would call the court attention to plaintiff's exhibit p seven which is the actual statement of the proof of loss not the item is ation that's p six that's the attachment to it piece a piece seven has a dollar amount on it of about two hundred and two thousand dollars i think is what the amount was and there was testimony from the public adjuster who assisted the boards in this case that yes there were issues with the item is ation and some of the issues with the item is ation of the things the that your honour's del pointing to about the misrepresentations there were other issues with respect to this particular item several one thousand dollars of furniture items big ticket items that were not valued on this claim so is this your assertion that there is some kind of bottom line rule well in this particular case your honor because of the nature of this fire where there was a it was a a total destruction of the structure the fire is the fire experts describe it flashed over and basically unaided both evidence of the cause of the fire and most of the contents there was no ability to go through and do what you know one hundred and twenty three visible tell me it was all done by memory and so the public adjuster said who's got fifty years of experience who has done thousands of these cases has said when you have that kind of loss what happens is the adjusters job is to come up with a fair bottom line well why isn't that just part of the materiality assessment in other words so you have the list of items the judge eriksson's describes them or overstated some are listed that never existed but also there are some items that they just failed to put on a proof on the last list wise enough for the jury does to decide whether overall that's material well your honor at that point that comes the jury if there had been evidence that in that circumstance that would materially affect the claim or how the insurance company deals with the claim then that would have been a jury issue but that's not what happened in this court said the insurer has to present evidence of materiality in the warrant that the failure to do that justifies a judgment as a matter of law and in this instance and if you go to willis that says even if you don't rely on the misrepresentation for the ultimate claim outcome and the evidence here is undisputed that they didn't rely on the proof of loss misrepresentations and denying the claim it still a material fact if it is reasonably relevant at the time of the investigative part as part of the investigation and there's no evidence at all like that you're an expert here well i mean this reminds me of raised up so many years ago well this was this was so many misrepresentations of such total value and apparent intentionality if you will that the jury i think why isn't that sufficient for the jury to to make a finding of material a material of well your honor a with all due respect i would disagree that it was a lot of misrepresentations about twenty five dollars items are you we can quibble about the numbers but the principle why isn't the principle i'm stating sound of if if if the jury can can make anything rational jury can infer materiality from the from the some of the some of the parts so speak  why do we do we need why does the unsure have to bring in its half its underlying one hundred on underwriting and claims force to say oh that would have been a bet was material well your honor they have to present evidence because they have the burden to a stairs the evidence is there now from your own from your own adjustor and part why i disagree with that characterization is well your honor the adjuster said in this instance and this goes back to willis saying it has to theory can find credible one percent ten percent fifty percent or one hundred percent of what he testified to and we have to view the evidence in the light most favorable to the verdict that that is correct your honor and there is no evidence at all in support of materiality in here what a pilot what if the what if the one of the items had been a super big ticket item one hundred thousand dollars that they claimed that never existed would you need an expert claim but that's pulling in your bottom line theory again right so that you're saying it's not an inflation of the claim so long as we left out some other things that we just didn't we didn't make a claim for which the insurance company may say well we don't know what those that that's not what we're claiming here your honor these things that we're identifying were listed on p six i guess my question is where is there a point at which the insurance company would not need to have an expert to show materiality that it would be as judge loken stated perhaps there it is there's enough there for the jury to decide without an expert and is there a line at which you have to say now under the circumstances you're describing this is an unusual case what's the standard about your honor i'm i'm not sure i would say that when they needed an expert witness they needed a witness somebody to come in and say what the jury has to have evidence that specific to the insurer that it was material as a poem why why isn't materiality simply a question for the jury materiality obviously being too to the claim but why does there have to be process evidence that what your honor there has to be evidence of some sort and the evidence in this case does not lend itself to drawing that inference out all day but not now you're just now you're just arguing didn't they have the totality of the of the facts in the in the record at the time the case was submitted the jury if there's evidence there from which a reasonable jury could find materiality than on then seems respect is not entitle to any deference at this point your reviewing this de novo exactly but but isn't it true that you know the insurance company presents evidence that they denied this claim they denied the claim for two reasons one they said the fire was intentionally s and the nd was that there were material missed that there were material misrepresentations right so you know what magic is in there and putting someone on the stand to say you know just like our theory is we denied the claim on material misrepresentation because your honor they identified what the misrepresentations were that they denied the claim on none of them had anything to do with the contents portion of the claim it all had to do with the arson portion of the claim for which they basically abandoned that part of the misrepresentation a trial by not calling the neighbor who is going to come in and testify and say i saw these guys after the time they claim they left they even elicited from mike packer law who testified that what happens normally is when you put forward the contents claim like this the insurance company then puts together their spreadsheet and they come to you and say we disagree with your values we disagree with  depreciation and we there appear to be items that shouldn't be on this list and there is then the discussion that goes back and forth and he testified that didn't happen on cross examination strangely enough state farm elicited from him the answer the reason that was dot done was because they weren't in fast they were investigating the arson claim they weren't spending any time at all on the contents claim and the likely reason for that is the reason that i am arguing this although we'll never know because they didn't call witnesses but the reason is they knew that there were large items that were not included on the list and even if they could identify certain things that the bottom line that number that is on piece seven the amount that state farm was being asked to pay wasn't going to materially change and that's what m when i asked him when you take into consideration all of these things that what state farm did just that change the bottom what does that change that number and he said i could step on it a little bit maybe one way or the other but it wasn't going to change very much and i said so where you can it wasn't going to be a material change to that number and he answered no no and that's the point the document piece i haven't a stablish is the amount that the were requesting that state farm pay and these misrepresentations did not affect that number at all and for that reason state farm did not satisfy its burden of proof to avoid this coverage in this instance i'd like to get with the court's permission i'd like to reserve the remaining two minutes thank you good morning your honour's keep it right here for state farm fire and casualty materiality is a legal standard it's defined as facts relevant to the insured or the insurers rights to decide to obligations and protect against fraud consistent with that the district court said this court in willis said it can be a material misrepresentation representation if it explicitly relates to an item included on the last leads to an increase or goes to the amount of idea that the jury needs to know what a reasonable ensure might think well under the law it and it goes on to say unless it's all small so the jury was told going to do it so that would be a reasonable unsure exactly and so why why requiring somebody coming in and give that testimony state farm in other words what i'm saying is state farm any witness cannot come in and say what the court's job to instruct the jury as to the law and to apply of the will the jury then applies the law that the facts but if i could push a little bit on that wouldn't there be something helpful to have the jury understand what is material to an insurer so we talk generally about what is material to a person but what's material in the world of insurance versus what's material when you are choosing between two items in a grocery store maybe two different things and it seems to me that the instruction includes the penny the zero dollars five cents the five dollars because it's so small that no one is likely to care about it i'm just curious of how the jury's going to separate out put it in there but what the jury was told that and it can be all meant or misrepresentation of an item is material unless it's so small to be trivial and really that makes sense because under the law  misrepresentation of an item of personal property is immaterial because the personal property is the very object of the insurance policy that covers it it's a misrepresentation that is material because it causes the insurer to do something other than what it normally it would do in other words pay for an item that does not exist we're not talking about oh you overvalue this not these are we're talking about items that they made up out of whole cloth it goes directly to the amount of the claim and it effects the insurers right to decide its obligations and protect against fraud experts can't testify about a legal matter they can't say what is a legal standard the court can and the court did and the jury here found based on the evidence in front of it as the district court found that the board should to tempted to steal from state farm they learned that that amount was not trivial that it was a concealment of an item of personal property that was not trivial and that's the instruction it was by thousands of dollars mr popular testified position about the if it's a lie about the existence of an item you don't get paid and he said that's fair so to the extent that there was a need for reasonable testimony which i don't believe there is investigating this this fire because of suspected i arson and he said it is not uncommon to not discuss pricing under their circumstances in the in the usual course of things and it sure is not going to come and talk to me about things that they might be concerned about that shouldn't be on with list if they're investigating arson i want to go to your bottom line theory because i call it the no harm no fall here we have  s argument ok we lied we made things up we put things on there but you know what we also forgot some things and we depreciated so no harm no foul but courts have rejected that and that's why because the reason is because minnesota attempts to defraud an insurer voids the policy and that's that is for good reason that is something we want to encourage under the law because it discourages fraud dishonesty cannot be ignored and it cannot be rewarded and i refer you to i realize it's not precedent for this court but i thought that the  out that understanding that process the thought process quite well there is no case in from this district that allows an inch or two an insurer to make up items and put them  intention to mislead and the last two just simply failed to show they had any relevance to the investigation at all but was not quoted by counsel from that case is order to be material a misrepresentation must somehow impact the insurers investigation of the claim lying about the existence of thousands of dollars ipso facto in pick impacts state sponsored investigation into what it owes under the personal property  personal property proof of lost and so are you saying the warren also stands for the proposition that regardless of any bottom line regardless of any maximum amount of coverage that any substantial misrepresentation exist in the distance of an item even a few one hundred thousand dollars we committed a claim for two hundred thousand dollars we put on there a television it's worth that we didn't really exist it didn't exist now it's down to one hundred and ninety eight that are you saying that warns him of the proposition that that's the material i wouldn't go that far because i don't think one goes into that in that kind of detail what regardless of the maximum amount of coverage exactly i think what what case do you have that your theory or is that does that have a basis and i think you can find support for that under the willis case because there this court said that misrepresentation is material if one of three things explicitly relates to the claim it leads to an increase over and that's important or it goes to the amount of the claim i think we have is fraud what we're saying is you would lie sorry go ahead if you lie about something and and and again it's for the jury it's a fact issue for the jury to determine given applying the law that the court gives to the facts here and here the jury had plenty ample facts to suggest to find that they misled them about thousands of dollars of items now  the curling iron issue speaking of one who you know if you go five days without a shower in power you don't bring one i mean it was it was evidence that went to her credibility and value  certainly warranted information to to present to the jury the cash even though she didn't claim it it goes to her credibility and intent here and so i will i do want to say to the court and i apologize that i i misunderstood i misread about how many cameras they had soldiers here in this oh i'm sorry it's ok i keep coming back to the same idea you know your argument initially was that any attempt to defraud void policy it's a very harsh result very broad and i'm just trying to figure out where is there a case that actually says that i mean because at the end of the day you know you say well it's different if for example  policy then i want to know what case actually says that and in other no exceptions because it seems awfully harsh well i think several parts two to the answer that question there is no case that  at five dollars and under your good five dollars and over you're not and the reason for that is is that it is up to the jury and the jury was instructed here unless the amount is so small that at that that it's trivial and that's what willis and i think willis and tweedle stand for that proposition that it is a jury job to take this definition of  fraud if you say then we're not talking here about i thought it was one thousand and ninety nine and it was actually you know worth one thousand and fifty four we're talking about making things up saying that you we had this many these many t v s we had these many lawn mowers i had this ring i didn't have that it was valued at fifty you know it's really two thousand dollars we were talking about begin to misrepresentations about the reasonable jury determine that this was not material i mean if it's truly up to the jury and you're saying there's it's sort of it's now five dollars and i think i think we would have a very difficult time coming in  lawyer see what i can squeeze in two minutes first off judge erickson in answer to your question they state farm can't cite to a law that says any attempt to defraud the insurance company will boyd the policy because the minnesota supreme court specifically rejects that position in the johnson case it says that there are states out there that says any intentional misrepresentation were void the policy but that's not the law in minnesota it has to be an intentional misrepresentation of a material fact that's pointing point b the question about the reasonable judge what a reasonable insurer would do state farm argued successfully i might add  explicitly rejected the argument of judicial must you did not raise it as an issue on appeal or refer to it in your main brief but you know if you're trying to twist it out of sort of different way to look at the evidence that ok you're telling me i'd be unsuccessful well i mean that i've already you know from my per my fam point of if the verdict was just on reasonable not jury because state farm didn't present any evidence this whole issue the amount of time so we urge we're still of the district court thank you your