think a lot of problems with this case because simply put i don't understand the district court's total indifference to the michigan innocent cohen sure doctor and i can only presume since we never had oral arguments on any of these motions from which these orders were deprived that the district court was so mesmerized by the ex husband he's now a former husband's conduct brian matthews conduct in  ok he lives in the united states of course we could know it i mean this is something way beyond this case which is all i got but you know to just say she's innocent without understanding that she she's presumed to know the wall that the new illegal activity was taking place in her house is disingenuous well the fact that he was distilling marijuana using butane that she's debt's what caused this fire you're argument is she knew he was doing something but she didn't know the extent of what he is doing therefore that excuses i don't think it excuses her i think it creates a question of fact and i'll tell you why i take the testimony of the deputy sheriff deputy sheriff jeff walker and this is part of the record he testified or you will where any law in the state of michigan that he violated answer no i am not question was his conduct illegal no it was not that's from page forty one of his deposition transcript under michigan law as it exists his conduct was legal there are you know there's all these cases of medical marijuana providers and caregivers who who i think now can get unemployment benefits something like that i'm not sure but i really don't follow that because what i'm looking at here is a woman who's working a lot she's working overtime just let's assume it's just as legal as it could be there's no question she knew they were conducting a business with her he'd never even said it was a business he said he hoped he made enough money at some point in time to turn this into a business basically very old committed no money what selling the marijuana turning this into a business no he said he never sold it what he said was that he gave it away or that he was able to recoup his his clocks associated with this and that's the law a lot of businesses recoup their losses only by that's not what caused this fire he's not running a business at his house he is growing marijuana pursuant to a license given to him by the state of michigan worth of a license to presume he's going to it or give it to somebody or give it to people he's a caregiver i didn't right the statute i think it's a crazy statute olive's act well no but the policy doesn't say anything about this that the issue of the issues said ok we you know you you violated the policy but we're obligated to pay nationwide and therefore we're coming after that the wrong doer here who is the husband insured the judge the district court judge decided you know he based all of his decisions on mr mathews conduct let's not even look at her he didn't look at her he said that he increased the hazard not that she hansard the district court you're talking about correct the district court said he increased the hazard and therefore pursuant to a our insurance company argued various other bases for or  look at the ones that the district court relied upon i don't think that that's the rule i think you could look at the other ones however when i mean really ask you about one of the other one ok what about the failure to comply this is the failure to comply with the conditions including failure to advise of change in the use of the residential premises to be used as a marijuana butane honey oil and t h c manufacturing facility and i can understand i understand the argument that if if one of your kids smokes a joint up stairs that you don't have to run and tell your insurance company but it but at some point doesn't that just by the terms of the language of the policy indicate that you need to notify them when got a growing facility that makes stuff that people use not just to look at but to inhale and get high and he's using in this she knew can some cans of stuff that had the word implantable on it when can once she never read them her she only saw one can learn that's what she testified to and she never read them and she did not know the butane was claim of those she knew nothing about butane if somebody is you taking their house to fill a cigarette lighter are they supposed to tell the in company the reason that this becomes an issue of fact is the palace it language provides coverage for while laying on the residence premises used mainly in the word mainly is there as the insurance private residence the policy states we covered the dwelling on the residence premises used mainly as your private residence the home was always used mainly as her private residence he has two rooms in the basement to grow marijuana the rest of the home is used as a private residence for her children and her now ex husband by virtue of the policy language there was never any change in the usage of the home mainly and if you look at all the policy all the cases regarding active can see it talks about whether the home decision is so interesting because in that particular case he had a tendency by the way no actually is down four minutes williams warming was a grandmother an innocent grandmother whose grandson arsons a home that wouldn't know but  williams williams where versus auto club group insurance company which is exactly on point in this case where the policy said and insured and the court said you can't use  in the standard policy which is the insured which even says the legislature is intent to protect innocent co insurance it williams it was a tendency by the entirety in morgan versus cincinnati it was a tendency by the entirety and the court said that we are not going to make the mortgage it was the husband i think set fire to the house we're not going to make the wife responsible for the actions of the husband despite the fact that there's a tendency by the entire joint tenancy by the entirety so the bishop it's a pretty poor has addressed those issues and has said that it really doesn't apply to make her responsible for his conduct and with respect to these cases i mean it's clearly clear looking at the case the issues that the judge did address that the policy language with respect to the increased hazard is void just that particular portion of the void because it does not comply with the hundred sixty five lines which the michigan courts have held and it's been addressed in the supreme court that it's got to comply with the one hundred sixty five lines and it doesn't it says it has the wrong language the court said well i have to follow the language of the case the language of the policy but if you're only following the language of the policy and not looking to the statutorily mandated provisions you can't do that so therefore you have a situation where he's filing something that he just can't you can't do it because michigan has the innocent cohen sure doctrine which applies and i think a lot of time or your honors may please the court michael schmidt for nationwide as a quote pointed out we break five different bases for summary judgment the court read it time to our breaks we argued through our brace we concentrated on ms mcdermott we didn't concentrate on matthew's macdermot was an insured in the house we had to establish that she was involved in each one of these defenses and we did it and the court chose to rule on two of them but we had all the insurer as soon as possible of any change which may affect the premium risk which includes but not limited to changes in the accuracy or use of the residence promises so when nationwide issued this syria where nationwide into the policy in two thousand and five they sent an agent out to look at the at the house and the affidavits attest to our motion and the agent reviewed it and he said i did not have a business occupancy do one was free from care and the policy was free from above average exposure and there were no property conditions that increased the chance of injury or illness to others this make an insured sort of have to know something about the insurance business in order to know what to report i mean an insured might not know what's going to increase the risk all at all as you assume everything would increase the risk like inviting yours your kids friends over for a party or something well that's that's not what happened here but i'm saying how does how is the insured supposed to know whether to comply with this provision that falls under the michigan law the insurer has a duty to read their policy if they don't read it or how to read i understand they read it and it says increase the risk and they don't know anything about what risk is and then miss everything increases the risk it can't be that so how do they know where to draw the line well and then it's what would a reasonable person do then it says and then it says that if the michigan law says if the insured reads the policy and has a question they have a duty to raise that question with the insurer in a reasonable time so she read that and she thought well this dream he just brought in twenty thousand dollars of lights and he's wanting this marijuana facility my in our basement and whatever i better check with the insurance company i'm not sure i think i'd better check the insurance company earlier that she knew that that he brought in twenty thousand dollars worth of yes and i'll tell you briefly this is what she knew number one is her testimony her testimony she knew he was running a marijuana business in the basement garage and she knew that if that was his full time employment she knew he was were going to eight hours a day she knew he had customers  she knew i was making profits because their net income was a thousand bucks short a month what they were spending this guy was making way more than that but he didn't keep books and records because he violates federal law he has no tax returns nope no business record nothing  she allowed him to run in the basement she had two kids her children ages twelve and fifteen despite that she's got and it's documented by the investigation the photos are attached the motion there's piles of loose marijuana in the garage you can see i'm on top of boxes marijuana plants all over the basement and then we have the investigation you know that she went in the basement yes she did laundry in the basement and the investigator bay county sheriff's report he investigated this and he's got i investigated i've got might be some line between what they have to report but this is clearly over the line that the idea of this is so far past the line your honor it's ridiculous this is absurd wilbert said this is the most elaborate marijuana facility  seen and he's in charge of the whole county so that's her knowledge as to that the only thing that mcdermott might be innocent of she wasn't there when this matthews is stuff and the marijuana and shooting hazardous collusion i think he's has clues you know that that would increase the risk if all you know is that it's a policy that it's a business but you don't know that it's a dangerous business it's i standard it's what you read to me notify the insurer as soon as possible any change which may affect the premium risk which includes but not limited to a change in i could visit or use so the question is was the transient is that just trying to understand her argument in your argument or argument is it's the use means the primary use of the primary use wasn't changed and it doesn't affect the wrist because i didn't know that it was explosive i thought it was just growing plants no that's not it you're honored that that's another step further just having a marijuana facility in the house forget the butane raising marijuana plants having marijuana already health that's a change your why i had to trash criminal activity so many want to come in to rob some criminal activity are from criminal no i'm saying not by matthews and mcdermott some outsider that guy makes the open house let's go rob that house said this is a change isn't it the changing of the basement well we changed our dining from a dining room to a partial office to me that would not be something i would need to know from insurance about my question i'm talking about the change in using a basement from a i have a health plan that's not what it was and the next issue was increased hastert this may want to see what increase the hazard and if there's increasing hazard then it's a is definitely was a new use a different use they're using for marijuana facility used to be a basement was stored in a washer and dryer now is one of the marijuana facility down there and all it requires from the dermot testified she was the one in charge and if she said turn it off you've got to turn it off but the other important point is that in her murder which which was produced there is a provision in there that says she has a duty to assure that there is no hazardous substances on the premises and it's and it defines have a substance as those defined by the federal hazardous substances act so she no only had she can't say she feigned ignorance in that case and says gee i don't know what putin is all that's ridiculous there's the investigation shows putin can't all over the garage all over the basement she's in the basement  i saw him with a candle basement it's humid i knew he must have been using putain in this operation well that mortgage requires to her to not permit this so she's got to go down she's got to investigate her house to make sure there's no hazardous substances in there that's argument that it's not in an accident and for that situation the frankenmuth versus masters case that's the case where a father and son said worthless does to some smoke damage to your business well things got a little control and a business and some neighboring businesses in the michigan supreme court says when you do an intentional act and it creates a direct risk of harm there's no coverage for his only damage or injury despite the lack of intent to damage or injury it's irrelevant whether the was different from what or exceeded from what was intended well here what's the intentional act they were intentionally running the marijuana facility the basement and secondly that created to represent harm so therefore it's not an we also have the defense of the wrongful conduct rule as the court noted what they were doing was illegal under federal law and it also was something that she knew about and under the federal law then the second part was there was about twenty one hundred dollars the nationwide paid before to the cause a loss and that was paid by mistake nation would never pay that soon as they found out about the cost of this they said we're denying coverage but then we have the point where nationwide nationwide did pay that off it was miscalculated by several thousand dollars and the bank sent mcdermott twenty six hundred hours back and didn't tell nationwide she got a freebie i think that's what reflects on her overall bad faith and the entire  you have a woman who is working overtime as a contractor trying to pay for her home pay for her pay for her kids her husband is a nerd well he can't keep a business he runs two businesses the to the ground and he comes up with this medical marijuana thing she's busy she's working she's taking care of her family and he's allegedly downstairs growing pot in two rooms that are locked she never goes in there and that's her testimony she will talk to her husband from the doorway she wants nothing to do with this but this is what he's doing in order to do something or she do the laundry she does the laundry done stairs but not in those two groups those two rooms are separated and that's what the michigan medical marijuana act provides that has to be like in separate rooms ok there is no testimony and there is no evidence that any of this conduct is illegal whether it is or isn't under federal law it's a different story but there's no testimony that anything is illegal now the issue with respect to accident is not an issue and that's that's  to who is admittedly that innocent cohen sure and whose intentional acts directly caused the fire it doesn't apply to mcdermott all of the cases that have been cited by nationwide are cases having to do with third party tort gets is primarily for her contents because the house money that she would have used to build rebuild the house has been given to the mortgage company so she doesn't get that  yeah one of the mortgage company doesn't have to give back the money the mortgage company gets the money to get a new mortgage presumably if you go back to correct she can go and apply for a new mortgage but she doesn't get the money that would have been given to her gets company watches as the house is rebuilt and she gets it's usually a dr a third a third in the third and she basically continues to make her mortgage payment so if your mortgage is paid off then you don't have to know at that point no i was thinking i didn't really speaking when the insurance company pays the mortgage off then you don't have to pay it any of course right there in the insurance company wrongly paid it off then she still does it she doesn't get it there's the set off she doesn't get credit for that money even if the mortgage company is wrongly paid off they're paid off it's her debt so therefore she gets credit for th and if she's in the wall in some sense she should have to pay not that she is in the wrong but just speaking if you if you're not covered and it mistakenly goes in the mortgage is paid off and you didn't  have a policy for instance it was all a mistake then to bring it back to equality she should have to pay back right well that's what the policy says usually what happens is this the mortgage company has a has a in the court doesn't determine this these are questions of fact for a trier of fact that she loses on the other i think i think i think that's probably the point but i think also you have to really look at this innocent