the court the standard for proving bad faith in ohio has been variously described as arbitrary capricious without reasonable justification or that it's not fairly debate the question is not fairly debatable ridge in this particular case we believe that the trial court quite uncharacteristically failed to construe any of the facts in favor of the non moving party in this case the carpenters and secondly again quite uncharacteristically the introduction of evidence which is incompetent inadmissible in to take it to to understand these standards as i just mentioned them i don't think there's a disagreement there are various cases cited but by all the parties in this case that use those standards arbitrary capricious without reasonable justification or that the question is not fairly debatable as a predicate for proving bad faith but i think that one thing that has to be understood is context and the factual context indeed and in this particular case we took the deposition of ms huff stater smith who is sie special investigations d unit advocate for denial of coverage actually she was involved in this case for about three months and when we took her deposition shit knowledged that all of the people involved on behalf of liberal liberty mutual knew understood clearly that they had the burden to prove the policy exclusion and why is this important because when you look at the standard as far as context is  case they were being liberty mutual relied on exclusion and mishap stater smith acknowledged that liberty mutual went before it denied coverage knew it had the burden to prove that exclusion  muchness was properly certified well mr herder is an excellent writer i will give him credit for that and i would agree with him completely everything that he put it is supplemental memorandum i made a complete putting and was about why it would be better for counsel and the attorneys to be to not have to try this case twice why it could be done while it's appropriate to resolve this it makes it easier if you go back but the real question you know under this kind of certification is whether you know whether whether the court below undertook the proper analysis to decide that  of whether there is a distinct or separate operative fact group of facts this court has struggled with that mix several context typically involving unconstitutional statutes and again and those contexts the court in the notion that the separate claims made derives from the same facts i think that that that in those cases this court backed off of that notion and took a look at whether these are distinct separate claims period and in fact these are separate claim the standard in ohio for this court term and now the legal standards that are going to apply to both of those those separate planks and so that's that's the nd part where you go through an analysis whether there 's just reason for delay st you have to have a final order on a separate claim yes or no ok i don't think  damages is not a final order on a separate claim do you hear that that as a practical state from a practical standpoint i would have to disagree because i have to try the case in trying to case without being able to prove damages is pretty tough but i think that the bad faith claim there can't be any any doubt about that being a step or claim that has been determined with finality ok right so separate claim my understanding is that under the case law a separate claim does not mean a separate cause of action it would grieve with that that it's not enough that it's a separate because of that  have i i think i understand where the court's going into next and yes i agree yes ok so then he look at the claim and i think what we look at is the operative facts do you disagree with that test const claim upon constitutional statutes to be unworkable and we think it's unworkable in this particular matter too because it is without a doubt a separate claim separate cause of action however the court wants to characterize it the ohio supreme court  and i if i may get to the merits a little bit here in this particular instance the believed investigator acknowledged that liberty had the burden to prove its explosion that's important because they are now in the we're never certified much of that issue your honor i think that the certification meets all of the standards adjudged rose who is the d the judge in the box if you will i think you made a proper certification all the parties agree in this particular case that if we are going to go to trial is that we're going to we're going to be back again we're going to have we're going to have a couple of appeals in this case if we can just resolve the issues that are now pending before this court one time i think that mr carter and i agree absolutely on that on that issue if you if you're so concerned about that it would seem to me that you try the case because basically the same nucleus  facts that had that those two contractual liability if the same did the same facts that are going to show whether they were reasonable in denying it and expect oh i'm sorry ok but if you're so concerned about it why don't you just you get it you know you use a specific verdict form and you ask whether there is bad faith then use see whether there's damages and then at the end of the judge just again strikes that count removes those damages and you appeal the whole case i might have time your honor i love to respond  have any jury instructions with respect to the separate cause of action better tort for insurance bad faith and we will be going to trial on the contractual issues without a with without being able to introduce from our perspective most d of the damages that we anticipate offering so we are dead set certain to have a nd round with you all on appeal i mean i wish we could avoid it but in the meantime my clients and mr carter's clients after incur the time effort and delay and expense and my clients would be horribly prejudiced they've already been warbly prejudiced by being dispossessed of their home now to be they have to go through a trial and the expense of a trial only to come back to you again in another year well i was saying that if if both of you are so concerned about this that you want the appeal to be heard now the way to deal with it is just agree to do what i suggested but only after you would have any objection your honor if i may yet there's no practical way we can do it because the court cannot permit evidence on an issue that's no longer before it well of the trial court can't for the bad faith claim has gone off that we get that we get off for nothing with respect to the separate toward a bad fa matter is those two issues preclude any efficient handling on a one time basis at the trial court level ok ok you still court this is obviously an abuse of discretion question and president from this court including the crew nearing decision say that where the district court considers the corrosion hearing factors deference should be given to it the district court in this case did consider those factors when you look at the decisions from the court record entries eighty eight and ninety two the court added several pages in its amended entry when it certified this case the court identified the sick specific corrosion earing factors the court specifically indicated that it had weighed those factors and considered those criteria this is not simply a situation where in a one sentence tacked on buses in a one sentence tackle on the court has added fifty four b language or or added no just reason for delay the consideration in decision to certify this is a reasoned one in this case and i would submit it is consistent with decisions from this court i would specifically refer the court to smith versus all state which is a case where the insur sued for breach of contract and the insurer counter claims the court ruled in favor of the insurance company on the insurance claim while the counter claim was still pending that case was taken up and a decision was issued that is in fact a residential fire insurance claim i would also refer the court to pure tech versus mount holly man against the insureds sued for breach of contract and the insurance company filed a counterclaim to recoup payments made during the pendency of the claim prior to the denial so the the breach of contract case was taken up on summary judgment while the counter claim to recoup payments advanced was unresolved in the district court this court had no qualms about taking that case up and affirming the propriety of the summary judgment decision even though the counterclaim still had to be pursued thereafter it it did not there is no substantive discussion a fifty four dollars b at all other than that it was obviously a certified appeal under rule fifty four dollars b because the counter claims were still pending submit that the court to the extent it needed to gave deference to the trial court and allow the appeal similarly i would refer the court to this to this court's decision in pure tech versus mouth all the insurance which is also in liberty supplemental grief where the insured sued for some sued for breach of contract and bad faith the court granted summary judgment on breach of contract for the insurance company but again allowed that case to go up right away on a fifty four dollars b appeal even though the insureds bad faith claim was still pending again  what i would point out to the court in this particular case is the vast majority of the carpenter's claim is the bad faith claim at least from their claim   set of proposed damages that you can fairly describe this is run of the mill the other thing i would point out to i believe judge strange this question in terms of whether or  not there's really a separate set of facts i think there is and what's most important to recognize about that is on a breach of contract case the insurance company will not testify at all there's no reason for an adjuster to take the stand there's no reason for a corporate rep to come in and testify as to why a claim was denied within the substance because the issue is are you still there i yes we lost you i'm sorry can you hear me again i'm not sure where you lost me but i was saying that the for any representatives of the defendant to testify but you would you have to present evidence as to why you believe it was arson but that doesn't involve the insurance company's representative testifying that involves a fire marshal or that involved a fire investigator that does not involve us putting on a claims adjustor in fact i would submit that if this is only a breach of contract case unless there's a dispute about the policy  to a technical issue the section of audio was not captured at the trial level i would also like to say i don't believe that the damages issue  presented if for be a problem either because the damages issue in this case we've lost him again can you stop the clock please i can hear you have just the video froze if you all can still hear me yes very good the d m this is issue in this case is two sides of the same coin the court has ruled that these are not recoverable breach of contract images but the court also says these are only recoverable bethy images when there is no doesn't think that there is an independent right under breach of contract to put to put that those items into evidence he does and i would submit that he is wrong  there is d no general breach of contract rule that allows the plaintiffs in ohio to recover emotional distress damages that is borne out by the fact that the kiss martin case that he cites is an exception to the general rule is if the general rule allowed emotional distress damages you wouldn't have the supreme court worrying about opening the floodgates by letting them in in residential contract cases as has martin does that the ability to recover emotional distress damages brickley under breach of contract in ohio is limited to residential real estate last two hundred and fifty years to allow this in an assurance setting see that i'm almost out of time i will i would like to point the court to the smith vs allstate decision and the thomas vs allstate decision both of which confirm that the question before the court is not is this denial correct the question before the court is is this denial reasonable the correctness of this denial is for the jury to decide at trial the reasonableness of the denial has been reached by the court and we would ask this court to affirm that decision by entering by affirming the summary judgment that was entered for liberty on the bad faith claim and on the damages that can only flow from the bad faith claim i'm happy to contract there's been a misstatement of the damages under ohio law we're not relying solely on halle berry suspects and we have cited a number of supreme court case this provide for consequential damages a matter of course breach of contract that all notwithstanding the real issue here is was there reasonable conduct on behalf of the insurance company denying coverage there was no absolutely no evidence of motive that this that the truck district court properly under corrosion i don't know how else to say it but but i'd like to address the merits because there cannot be any good faith decision to deny coverage in the absence of motive evidence and in this case it is absolutely uncontroverted that the only thing that the plaintiffs could have gotten as a result of their their insurance claim would have been their home or store why why remodel the home just before a fire  mortgage none whatsoever have everything why go to the time trouble over of a beautiful remodeling job which is a quote from the adjuster that was on site only the torch the house to have it repaired that provides no motive disable kids when you just remodeled the home to accommodate their specific needs what is there to gain by torching the home only to have it repaired i can't answer that was her response she has to answer that to have a apple cart upside down is that in this particular case on the contract issue the defense liberty mutual has the burden to prove its exclusion without without the exclusion we have coverage as we sit here today but you're arguing that they didn't have absolutely none absolutely not held as a yes in this particular case under ohio law and you lose on the contract court still held that there was a claim existing for bad faith for the insurance company's lack d of reasonable basis to delay ok but that's not this case  claim that their de lay defeated your contract rights your honor we can't try the contract case as it's presently constituted because the court has essentially taken away all the damages bill i mean  absolutely correct we try this case on contract even if even if the court finds that there is a board that the jury finds there's a breach of contract that issue isn't even done because we have no damages because the court has authority i'm sorry i'm out of time i'm sorry will i'm not following you if you win the breach of contract it's then you get played under the policy why do you say there's no damages because we have been denied any the court has denied us any incidental or consequential damages for example the rents paid by my clients who moving expenses the harassment that they had to go through multiple times to move it to disable kits living in an eight hundred dollars square foot apartment with multiple moves serial moves and the hardship that the family has suffered the expenses were not allowed they went to two to claim any of that as the court's ruling presently stands because  the court misapplied ohio law and said there were only entitled to the policy limits policy limits are if we had if liberty had honored the claim we would be entitled to compensation up to the policy  i am the claim we have consequential damages and the court is preventing us from  aren't those damages the policy limits what is the policy limit i can't even remember the policy limit your honor but the policy limit is what is owed by the company if it honors coverage to repair or replace the home they have to repair the replace the home within that amount well there was no question about that what happened was in denying coverage now my clients have incurred consequential damages i understand what you're saying but  your you said there's no question about that there's no question about what they didn't pay it right correct but they're it's not a question of whether there's was an excess of them i'm sorry there is a question whether they all are right absolutely ok so why do you say there's no damages to be collected because the court's decision that with the decisions that we are appealing prevent plaintiffs from offering any evidence of consequential damages under settle the high oil contract i understand that but there's still the amount of the policy right only for a repair that's it not for nothing else ok and there's nothing in the policy that provides that once when your house is destroyed they pay for reasonable rental expenses only if there's coverage they have denied that because there's no coverage i obviously that's why you have a lawsuit i'm sorry i we would be well beyond those limits excell i'm sorry are you saying that the court determined that all you can get is the repay air and that even if you show that they were libel under the policy the corp determined that as a matter of contract law you were not entitle to compensation for reasonable rental expense this is absolutely the way that this is stands right now absolutely absolutely because that it what the court did was said you're entitled to the single limit for repair and replacement that's it there is nothing does your contract provide for rental expense beyond this point we would be well beyond the  coverage ok that's what that coverage is elite coverage and we would not be able to access that coverage now and say ok all right council we thank you both the case will be submitted