issue of whether american family a stablished that it provided the requisite notice of its new policy exclusion to its insured they in centers incorporated on a record where that finding was wholly unsupported and at the very least the case should be reversed because there is a question of fact regarding whether notice was provided with regard to the first issue the subject matter jurisdiction the only basis for subject matter jurisdiction asserted in this case in the only conceivable basis for jurisdiction is traditional diversity jurisdiction there is no federal question involved this is an insurance coverage case as a matter of contract and secondly the class action fairness act can't apply because of the seventh circuit pointed out in the travellers or says good case and  reading of the class action fairness act in the new section thirteen thirty two d applies to cases involving plaintiff class actions here the class is a defendant so under traditional diversity jurisdiction there's a long line of cases i'm sure the court as well aware starting with cider versus harris that says damages as to multiple different  injured parties can't be aggregated to satisfy the seventy five thousand dollars minimum amount in controversy this court in one nine hundred seventy three applied that principle to a question of whether a coverage case involving multiple injured parties could be aggregated and held that they could not and that's the crenshaw versus great central insurance case that we cited in our papers more recently as we also pointed out we've had this issue specifically with underlying putative class actions with the sixth circuit the first circuit and then the seventh then the traveller's versus good case all holding that aggregation was inappropriate and therefore jurisdiction was lacking and with respect to that point the first circuit in the c e design case made the point that well for one thing we don't know if a class is ever going to be certified at this point what we're dealing with is just a single claim for five hundred dollars and in that regard there don't we have to look at the amount of controversy  at the time rather regardless of whether lawyers or foreign nuts are yeah and i think that's certainly the rule and i suspect where your honour's going with this is to say that at the time that this case was brought that the underlying case was certified i forget the timing exactly but that may have been the case but ultimately you still have the aggregation issue and i was just and ultimate one of the reasons for the anti aggregation issue is that things can go away and in this case is which is also up on appeal the other i should say the underlying case is up on appeal it stop being a class action for the court to certify that there's a five hundred dollars judgment and now the decertification orders on appeal but ultimately we're not saying that this case lacked subject matter jurisdiction because of what stage of the certification process it might the underlying case might have been in at the time it was brought for simply saying that you can't add up the damages for all the class members to get to a mountain controversy if the court is to reach the merits of the case it really is is close to a single issue case a single issue appeal is i've been involved in  the this is a case governed by missouri law of insurance coverage the missouri supreme court his saying clearly in the higher decision that standard commercial general public liability policy language such as the language in all of the renewal policies that issue in this case cover the underlying t c p a claims both under advertising injury and property damage and ultimately the result on coverage is the same even if only want to apply so really all that matters is did american family do what it had to do two and a t c p exclusion to the two thousand and seven renewal policy and i as we pointed out in the paper is and as and i don't think it is in dispute it's the insurers burden to establish that both that and then exclusions part of the policy and that applies and the missouri law says that the insured has to provide advance notice of a new exclusion if they're going to try and add a tournour renewal policy because as it's under stir stood the term renewal means a policy with the same terms and here all that was proffered inhabitants was an employee of american family named  woodcock is not an underwriter doesn't work anywhere in the mailing process referred to how things actually got sent out is magic that she is not privy to and what she did is she reviewed the files and in reviewing the files she found that there is no copy of the specific notice allegedly sent to  centers that the there is no nothing in the computers file that specific to van senators regarding this t c p exclusion they have an electronic copy of the form letter enclosing policy materials but it didn't reference the notice for their let me ask you about that so the family was not able to produce a top  that's a very interesting question one thing that i found striking is the fact that there were proofs of mailing in the file with regard to the reservation rights letters yet there was no proof of mailing with regard to this notice and there are other documents other policy documents kept but not this notice and that's essentially what the testimony was and i think american families entire argument as well pattern in practice evidence can satisfy a burden to establish that something was sent in a particular case and as a general matter that's true but here nothing that was presented into evidence would get them to that presumption it's very similar to the case i think both sides have cited the missouri  insurance placements versus utica where there as here a witness who was unfamiliar with the system or the practice was proffered to testify about what they found in the files and essentially said well this is how i understand that we usually do things and it looks like that's what happened here so that's what i'm going with and the we did cross move for summary judgment saying that essentially this is an issue on which that you didn't cross appeal the denial of summary judgment i don't know if you could yeah i don't think that  asking pores to have it sent back for further proceedings on this right i mean i think that we i think that it's fair burden they clearly haven't met it but at the very least that's a fact issue and it should be so that said you don't think this deborah woodcock has sufficient knowledge to establish that the letter was sent that's correct she testifies i have proof that the c s l notification went out to the customer and the dates that the letter went out procedurally this letter underwriter and she doesn't understand how the process works or know how the process works and they has no confidence in anything other than i looked on the computer and that's what it said she just inter computer records of the company that's correct what was her was she a custodian of records or what was her position in terms of her job title life or why was she the witness this well that's a good question it would be a question for american family are you asked for a thirty b sex witness of the person most knowledgeable on this issue or she was the thirty b six were that's correct you offer evidence that you didn't receive it no we represent the underlying class the underlying insured is defaulted in this case has been generally unavailable  ordinarily that would have been something i think that would helpful be helpful candidly but it's not our burden and that's the whole reason why insurance companies right but the presumption she the testimony needed to be sufficient to create a presumption both that there was a mailing that was sent and also that the particular key document the notice form was included  mailing and the equivocal level i think prevents the presumption as to either of those things and what the other point i was going to make is i've dealt with a lot of insurance companies and that's why good record keeping is key in these six circumstances for example i know that there is one that i have dealt with where every document that sent out to  coded and scanned into a system and so they match the computer matches up the barcode numbers there's no question of what what went out we don't have that here you send it certified mail and keep a simple proof of mailing that's what american family did with respect to its reservation writes letters i didn't do that here just sort of trust trusted that everything went according to plan in the magic worked and legally that's not sufficient so unless your honour's have further questions think your honor may place the court my name is tony martin together with ken lander we represent american family and the appeal of this case we believe that because judge hamilton correctly ruled first of all not subject matter jurisdiction issue to nine saying those hearts motion to dismiss she should be affirmed on that issue and she should also be a firm on the summary judgment that she granted in favor of the of american family and while at the same time denying st louis hearts motion for summary judgment turning first of all to the summary to the subject matter jurisdiction issue before this court there are many cases that have dealt with the issue of subject matter jurisdiction in the was already correctly noted that the time you determine the subject matter jurisdiction is when the case is filed when the declaratory judgment cases filed  this court's ruling in the scottsdale insurance versus universal crop protection case also that case made clear that post filing events can be used post filing events post finally new information can be used to determine whether there was indeed subject matter jurisdiction whether there was indeed the amount in controversy at this sufficient to satisfy federal jurisdiction so in this case those factors are indeed what we rely upon in what we argued to judge hamilton below satisfied her subject matter jurisdiction and as she found in her order denying their motion to dismiss their millions of dollars at issue in this case when the case was filed so clearly that issue under uninsured motors claim in two counts against the insurance company and in that case in that direct action there were claims by the mother and father for the wrongful death and their worth claim for the daughter for her separate injury the court held as a matter of law that the vexatious refusal claims failed and therefore the maximum amount that could be in controversy under count one was ten thousand dollars the maximum out there could be in controversy under count two was ten thousand dollars since those were the visible in the vidual claims they could not be combined that's all we're dealing with here we're dealing with a liability insurance policy we're dealing with a case were similar to this court's ruling in the case of scottsdale insurance versus universal excuse me yeah universal crop and the test that this court stated for a liability insurance coverage is the amount in controversy ordinarily equals the probable cost of defense and indemnification of the underlying litigation less any applicable deductible well that's clearly satisfied here one of the reasons why we put the docket sheets from the underline case in the record was so that this court would be informed of the magnitude of the work undertaken by counsel retained by american family to defend its insurer insured vein centers in addition to removing the case of federal court they undertook discovery to rebut or try to oppose class certification as well as to defend the case on the  opposed the motion for class or vacation when judge perry granted the motion for class sort of occasion they filed a petition for into law kotori review before this court in twenty thirteen and after that failed they then filed a motion to do certify the class that was their first motion to decertify the class then they opposed summary judgment and after they opposed summary  seventeen by judge perry los and then the case was appealed to this court it is currently under submission before this court obviously all of those costs just we just knowing have any idea of what the what it costs to defend the casing undertake all of those actions in the st louis metropolitan area shows that the amount in controversy is satisfied on the defense prong alon that those defense costs are indeed more than seventy five thousand dollars in fact they approximate two hundred thousand dollars at this point but then not only do we satisfy the that pro also the amount of indemnification requested was in the millions of dollars in their summary judgment against vein centers in the court below and that was known when the declaratory judgment action was filed and that's part of the record so american family in good faith made allegations in the the complaint for declaratory judgment that the amount in controversy exceeded seventy five thousand dollars in a day indeed does indemnification is sought for millions of dollars and the defense costs also separate prong the defense costs alone exceed seventy five thousand dollars so subject matter jurisdiction really should not be an issue in this case nor should frankly nor should the issue of whether or not judge hamilton properly granted a summary judgment in favor of of american family she did so properly while at the same time the nine st louis hearts motion for summary judgment which was the basis of knowledge for this witness to testify about the mailing was she simply a person looking at the computer screen and reporting what was what she saw did she have any more judges she was designated as a thirty six wit know that but that's not my question but ok question what was her basis of knowledge when she testified the basis of knowledge was twofold one her job requirement she'd worked for american family insurance for thirty two years and in our operational capacity that's one her own personal experience number two because she was a thirty b six witness she researched what would have happened in what should have happened and what did happen and that's through her research she was able to determine that indeed as she testified as you pointed out in questioning counsel for st louis heart that she had proof that the mailings were sent she said that yes that's arguably a conclusion eerie statement well it is so i was trying to understand then she went on elaborate and it's kind of she speaks in acronyms and she got a little hard to follow but she does she speaks in acronyms and you hector she you thought she was your best thirty six witnesses to explain these things absolutely y acronyms mean nothing to sure someone who's not a what does that mean i'm just trying to identify this system judge i don't recall exactly it's an electronic data and what the mc stands for i don't know i as absolutely her records they could reproduce it and they did reproduce it and it's part of exhibit two to her deposition transcript as is the other document that was linked electronically linked to the and i'm not am going to use an acronym judge and i'm not going to be able to tell you what they mean i can tell you what it says the p l c two eight zero seven five is the document that informs the insured what the changes are going to be including the reduction in benefits that's at issue in this case so was that also reproduced or was that just an electronic entry that's an electronic intreat judge  exhibit two ok three of the exhibit two contains the exact language that went to the insurer and to quote from that distribution of material in violation of statutes exclusion it sets we have introduced an exclusion to apply to bodily injury property damage and personal advertising injury arising directly or indirectly out of any action or to these documents in her order she does and she does it in as well in addition to referring to the documents judge she refers to the fact that a colleague of hers judge shaw had in a similar case also involving his heart coincidentally in a similar case had found that that t c p a exclusion was twenty thirty nine seven three of subsequent ten forty five she followed his ruling and the exclusion that's at issue in this case is specifically the type of exclusion that the supreme court a missouri invited insurers to add to their policies with insurance at the end of its decision in the higher holdings case it invited and that site is for eleven southwestern thirty eight page two seventy four so very end of it's opinion basically same to the insurance company in that case and any other insurance company in the state of missouri if you want to make sure your policies bar this kind of coverage in the future you can contractually do so well that's what american family did now this case i've i pulled the insurance placements case home insurance there were two to insurance companies as defendants in that case home insurance it's a person in a role similar to what ms cook's woodcocks role was looked at the computer systems and in that case he looked at the computer systems and found there was no notice until after the important date there was no employee notice from the insured and that was one of those cases where the insured was required to give notice not the insurance company the insured had not given timely notes now there's another issue very similar issue will the insured was trying to turn the tables and use the same rule custom and practice  mailing in the court ruled ok insured you can't get away with that because your not only was the president of that company giving a great deal of incan to inconsistent statements and testimony in affidavit in addition he admitted he had no memory of this letter going out and second of all it wasn't a custom and practice they'd only done it wants that it do doing something once is not a sufficient custom  practice and so for those reasons the testimony of that resident of that ensured was insufficient to raise an issue of fact i see my time is is has expired thank you f revival thank your honour's with respect to the jurisdictional point there's nothing in the record about defense costs or any amounts for defense costs and that's probably because american families not seeking recruitment of anything it's spent on the underlying case that's just simply not an issue in this case it wants a declaration that there's no coverage for the class and even if it were seeking  attorneys fees at spending in the underlying case the anti aggregation cases from slater on down say that that gets allocated among the class members so that doesn't get you to seventy five thousand dollars  either american family relies on scottsdale but in scottsdale there was a class and each of the separate claimants separately satisfied the amount in controversy so it's not particularly helpful for this situation anyway it struck me that in counsel's attempt to distinguish crenshaw he talked about different claims but that's the heart of the matter in terms of the jurisdictional analysis absolutely correct so why isn't this like the meridian case that it is also similar to that but i think that ultimately i would issue sensually what the computer says is what should what have happened should have happened but there's nothing showing what did happen under custom in practice or otherwise the letter that counsel was  putting before the court this would cock testified that the can system doesn't have a copy of what was sent it has a copy of the forms and there's nothing linking the form notice to that to the form