from each side as to how much the various experts had determined to be the bell you should have been play paid for the claim instead the district court made a number of significant errors that denied sunflower  a fair trial and there are four in particular that i'm going to highlight today the surance carrier on the case here the saban surance carrier for the  i apologize but i i don't know for sure if they were if it was the same harrison that's what's his name stevens made that his name and there was a two thousand and one estimate and he was comparing that to what was given two thousand and and seven and was that the same insurance company or do we know i don't know for sure that that was or not i apologize i don't know that we have much of any detail about the two thousand and seven repair work that was done here part of the problem was that there was a preliminary ruin in the district court excluding reference to those repairs because no one had bothered to go get depositions and flesh out what had happened with those repairs back in two thousand and seven which is eight years before this this case and then he abandoned that ruling trial and went ahead and let them go ahead and introduce that and that became the cornerstone of their entire case at the same time q the judge excluded detailed reports from stevens that had the exact amount numbers on them that should have been used and heard by the bids and invoices removing companies they weren't exhausted exacting estimates they didn't have detailed breakdowns of line items and and and information about the scope of what was being done and why so there's really no way to have compared those  anyway and you know that's a that's that's the rd error that i'm going to talk about but i'll get back to that if i have time but i really want to start with harkening back to justice with sarah's comments this morning is the real injustice of this case which is allowing  a remedy that is beyond the scope of what this contract provides for by allowing owners to take a defensive position and turn it into an affirmative claim and then craft a money damages were a remedy that isn't provided for by this policy the affirmative claim being the return of the seven hundred thousand dollars it was yes it was yes between the initial payment in the supplemental payment it was seven hundred dollars and some one thousand yes that is the sanction for fraud we should be able to get our bunny back what was the legal breech of the laundry under which they got the money breach of contract was the jury question they said so it was a preach a contract or it says that if you fraudulently represent facts to the insurance company the insurance company may void the policy and not have to pay on it and that's the end what they've done is they've taken what amounts to a defensive provision of the contract that's meant to avoid payment and they've turned it into a claim for affirmative and this recruitment claim is there is there an error made by the district court on this oh yes there's two errors st would be the denial  rule fifty motion because the only remedy that they were seeking at trial is not a remedy the contract allows for as a matter of law a number two as interesting judgment for that remedy when the contract doesn't allow for it as a matter of law and what they what they did is they make the big confuse the district court judge with a line of cases that has to do with a very specific situation that doesn't apply here and the principle one is this court's opinion in american diver supply v balts which in turn relies primarily on a th circuit case kolchak how and the situation in those cases was as follows in both of those cases the insurance company determines during the claims adjusting process before they've paid anything that they've been lied to by the by the by the policy will and so they void the policy and they refuse to pay anything on the claim invoking this very fraud cost we were just talking about absolutely and there was and we had abundant evidence to show that there that our reason our estimates at the amounts that we got them from the roofer and our independent juster were reasonable what was the what would the facts that supported the claim of fraud well that's the  nd issue so there's no cost we're talking about says you fraud by you and you in this policy means the insured it means some power condominium owners association and there's no evidence that sunflower had setting aside i do believe that those of those estimates were inflated or fraudulent at all they're just differences of opinion that are common in all of these exact i mean estimates there is this law there was evidence submitted to the jury that supported this one million eight hundred thousand dollars whatever that but there was testimony from him explaining how he arrived at the estimate that he gave for our three hundred g s that before the condominium board meeting when they asserted that plane i'm sorry i don't amount at the time that they approved a claim in that type knowledge as i understand your question now yes they hired a independent adjuster matrix and matrix consulted with our three n g to prepare estimates once they had discovered that there was hail damage on the roof that was a decision was made by the board to get the estimates prepared yes in its were prepared and then those were presented to the board in the amounts that the board submitted them and that's the key here is that speaking of injustice i don't believe that there was an estimate swear intentionally inflated by our three energy but even if they were what the what the district court allowed the jury to do is impute whatever intent they might think there might have been on the part of our three energy raise this issue that you could not that basically we do not function here by an agency theory and that the liability or negligence or any kind of fault that could be attributed here has to be directly involved with the condominium owners it can't come to them through these other entities it was raised in a rule fifty motion at the close of evidence renewed in a rule and the district court said you're coming too late with this argument you for right yes and no he said that we were not untimely in raising a rule fifty motion we met all the requirements to time here as a rule fifty motion but he then on his own refused to consider the merits of it because he believes we should have done it as a rule fifty six summary judgment pretrial and and so in your briefing to have you address this forfeiture problem i believe we've addressed the waiver issue in the brief to the extent that there is a weight that there is no waiver fighting so the way i characterized it is in my brief was that he refused to rule on the merits of the rule fifty motion his actual holding was that we met rule fifties requirements then he us through agency no no because the they're proving a breach of contract and the in the contract provision they say we breached is a direct liability theory it says you so they don't have any evidence that the that the condominium is owners association actually knew that the amount of the claim was misrepresented assuming that it was and what they were doing instead is such to the property manager testified you know admitted his testimony that it was inflated and that there were items in this estimate that he really could not explain i think but there weren't it wasn't evidence that he deliberately didn't include them there were differences of opinion in a couple of mistakes in there b whom they were relying to give them the amount of the estimate so what happened here is that and by the way it's not just a rule fifty that preserve this there were objections to the jury instructions as well which couldn't have been brought up any time before that  told the jury they were to consider the actions of matrix to be the actions of the board and that they were agent yes in that this with yes and that they were allowed to consider the act and they were allowed to consider the actions of our three n g s also the actions of the board and so in addition to the rule fifty motion quite aside from whatever assert that there are what's your best case with my best case for that proposition is pure of this case that we cite in the brief and the end of course coming back to the plain language of the contract because what they've what they've done in there is grafted common law agency into a breach of contract one where the language of the contract doesn't support it which is what the peerless court found if they had wanted to write this to say that if you do this through your agents or your employer use they could have written it that way there's no number of other instances in this policy where they do have provisions that specifically reference employees and agents without all reserve my last two minutes please the core my name is evan stephenson and i wrap rick represent the apple e owners insurance company your honor this case is about a policyholders duty of complete honesty in making an insurance claim in this case sunflower tried to game the insurance system was caught and was held responsible by unanimous jury following a arguments made by sunflower that actually address the merits issues they want this court to address were st briefed in the reply brief in this court the trial court ruled that sunflower had waive and forfeited its agency argument that it's making now its recruitment argument that it's making now those are the two main arguments that you heard just now those arguments at the st argument excuse me the district court reason for not addressing those on the merits at trial was because the district court held that they were forfeited and brought on timely and sunflower didn't address that ruling by the district court until the reply bri probably there's about twenty pages of in depth analysis that we had no chance to respond to in writing and some of those arguments were never presented at all below but the district court's reasoning and ruling why it did not address those arguments were not addressed until the reply brief so under this court's longstanding precedents including the mckissic case which you cite in our brief those are waived on appeal so the court need not even reach those questions they should be forfeited in this court as well when was agency st raised the st time an agency was raised was at the close of all evidence on a rule fifty motion brought by sun flour didn't you have to raise agency in order to  about agency were their argument that agency is imput that no liability can arise from the actions of agents and that argument they didn't raise until the very end of the closer evidence and every single witness who testified for sunflower or either side that addressed this issue all agreed that they were agents they don't even dispute that these people were agents and all of them agreed that they could not pass the buck so the trial evidence on this was unanimous let me let me walk through because there has been hail damage to a roof of a house that we go and we call a roofer and ask for an estimate of repairs to the roof that that roof or is the agent of the owners of the house i wouldn't say that every roofer would meet the test or agency and fact the trial court denied our rule fifty motion for an instruction that the roof agent we had to prove that the truck would actually disagreed with us at the route fifty station and we did prove that and i believe the trial court did find that he was an agent but so i would say no to that particular scenario but if you and i in my scenario  there is had hail damage to my roof i called a roofer who is not my st cousin or my brother in law asked for an estimate to repair the roof in that case the roof is not my i would say dominic the the expert that he worked with the public adjuster who is an agent who was undisputedly an agent whose contract says it's an agent so he he was actually working with the public adjuster as the public adjuster his right arm and by the way your honor there is no challenge sufficiency of the evidence of agency by that there are so large amount is that as a matter of law even if mr nomic was an agent even if they still can't be held liable for what he did so that's their actual legal argument they don't actually claim that the evidence was insufficient but i'm happy that that's the main reason is that he you're welcome here are to get back to a couple questions that were asked at the beginning of my my friends oral argument owner was not on this risk owners insurance company was not on this risk in two thousand nine the largest of the storms so owners was on the risk in two thousand and twelve for the nd storm but no insurance claim was made for that storm and i agree with my friend that the two thousand and seven invoices there's no insurance claim for that because that was an instance where own where sunflower was paying with its own money it was simply replacing its roots as homeowners associations do when they get worn out and that's why it was powerful trial evidence because when we compared what the  would pay with its own money using an expert and we compared it to what they wanted to charge owners for the exact same groups the numbers were very very different so you're right judge this is a case where forfeiture eliminates sunflowers primary argument particularly because they didn't address the trial court's ruling until the reply brief but even if this court does reach the merits of that st issue of agency the result is the same there are many cases in colorado history where insurance have violated anti misrepresentation clauses and the result is that coverage for the entire claim is voided and in some cases where the insurance company catches that after it's paid the money has to be returned so this case of the frontier case your honor will know it held that and ensure that violated the ante misrepresentation clause in a case where the insurance company had paid just less than two hundred thousand dollars was required to return it and referred that to that as damages for breach of contract and the rationale of this court's decision in the american diver supply vs bolts case compels that recoupment remedy that the or new that the that was repaired was over estimated is was what so that there are two baskets of evidence your honor some that have to do with the board directly and actually that's why their st argument fails anyway because the board did have knowledge that would violate this clause and then there's a nd basket of facts that deal with just what the agents and i'll start with the board the board had in  the invoices from two thousand and seven that the actual cost of the actual routes that are being replaced which is the gold standard for determining what the value of the claim is had in their files and the end the president of the board  check signed a proof of loss that sought approximately double what their own invoices showed the district court admitted those invoices to prove the mental state of the board so there is direct evidence of the board's mental state also in  that st basket your honor the board misrepresented the date of discovery of the damage and that went to the jury as well and that that would be against the president of the board misrepresenting under oath actually the date of discovery of the damage so those are two things that are the board themselves knowledge that the board knew what mr ball there were doubts correctly was doing this is what  so or that they confirm or ratified so it's all owing actual knowledge to us as to the data reporting there was evidence that the contractor had provided an email in april two thousand and fifteen notifying every went to the the association manager who didn't provide the contractor's assessment of the rubes to every board member and the trial testimony from his countrymen the association manager was that every board member wrote back and so there was actual knowledge by every board many many months this is in april two thousand and fifteen they wait until december to report the claim and then they said under oath as he felt it said under oath in discovery response that they didn't discover it til a few days before they reported the claim and some of the fraud the fraud here is you because it was true and we put we put up the difference between what the association paid for those exact roofs adjusted for inflation compared to what they wanted to charge and asked the so cease and manager does that suggest fraud to you and she said  maybe she looked and she looked like she believed it i mean that the evidence was very compelling this is not a case like you referenced during the st argument of just a little a few overcharges here and there this is it least eight hundred thousand dollars of o charges and a one point eight million dollars claim so nearly half of it should never been submitted in the st place and this was not done by someone who was adding an extra zero or just clueless or making an innocent mistake these were professionals who had contingen who had bonuses on the line with financial incentives to do this well i understand all that i mean the public adjuster and his expert or her expert but to a pew all that they ratified so your honor i think on that point because i can understand people in a contingent fee being a little aggressive but to blame the clients for it is a nother matter your honor the law in colorado the makes vs smith case holds that even bad intent by agents is imputed as a matter of law it's the principle and it has to be that way if this court were to adopt a revolutionary ruling and say no longer can associations be held accountable for what their agents do it would affect not only the insurance industry would affect every industry what hold on not so quick ok i don't think this panel would says that because the policy says you you have to be honest and not violate the misrepresentation clause of that that means agencies aren't included and that is just flat wrong all of the cases that we cite are cases in which on some level an agent concealed or misrepresented things and the the association was still held accountable certainly they acted through agents to make their claim they're acting three chance to make their claim in to a certain title meant to benefits and performance from adjuster and matrix is the public adjuster dominic the contractor if they were not of the jury was not instructed right those those three were found by the district court to be agents that we have an appeal from that  ruling that i don't see inclusion of the district court no there is no appeal that those people were not agents their appeal is that even though their agents were not responsible for anything they do which is contrary to over one hundred years of colorado law and the only case they cite is a florida case interpret georgia law that is obviously distinguishable it's not a case that held that agents can't create liability for principles in the insurance context it's a case that held that the people in the good thing you reserve the there's a lot to correct but i don't think i have enough time but i'm going to get some highlights quite apart from the rule fifty motion as i was alluding to in my opening argument there was also a very specific set of objections nothing to consider and i have two to two responses that number one setting aside whether or not there's actually a viable waiver ruling as to a rule fifty motion and on this case to set that aside i may come back to that there was also separately an objection to the n and isn't the usual rule that the instructions are to follow the evidence that's been provided at trial the rule is that the evidence is that that the instructions are supposed to fall the evidence and the law so there is still a legal objection to to how the jury was told it could consider the evidence that head hurt but during the trial itself it was not terribly raised this challenge of agency was not raised is that right that well that's right because it was a it was rule fifty sufficiency evidence point because as you just admitted during his argument that was their burden they were supposed to prove some sort of agency theory as part of their theory of liability i don't believe that's a viable theory of liability at all but to the extent that that was their theory from that is there right there is an appeal from that ruling to the extent that it's in the instruction we objected to that instruction telling the jury that they were agents yes and then though if i may just one last comment on coming back  you the argument was that you could not raise the issue because you have not filed a motion for summary judgment on the point yes in what case is asserted for that proposition nothing he made up for this one he cited another case involving a different procedural rule where not is not a summary judgment motion where the where the expediency of being able to cancel a trial justified raising an issue earlier at a pretrial order that told chaos that would result if this court were to say that every time you want to challenge evidence on sufficiency grounds on appeal you have to have challenge and raise those arguments in a rule fifty six dollars motion before trial i don't even know where you begin with that every single affirmed defense and every element of every affirmative claim would have to be the subject of a summary judgment motion or you could challenge any of them anything that goes on a trial so and by the way it's not forfeited the rule is you have to find plane air if that's their argument that's plane air that's a ridiculous rule thank you thank you thank you both for your arguments and warning the case is submitted