included a portion for the thomases counterpoint here american modern did not receive a fair trial the district court excluded relevant evidence and also misstated the law and that is why the jury instruction in the st phase and then the nd is submitted a supplemental instruction to a jury question that was prejudicial and necessary looking at the supplemental jury instruction that is at issue phase two the jury instruction supplemental instruction was unnecessary exceeded the scope of the jury question and was not neutral and prejudiced american modern undercut american moderns closing arguments in the jury trials i've had i not the trial court do what the district court here did here with the supplemental instruction of counsel i i bet you had more state you have to answer this question but i bet you had more state instruction number seven was approved by both parties both parties consented there was no objection at the instruction conference and during closing argument there was no objection to the arguments advanced by american modern as to the instruction that was provided it was unnecessary for the court to provide any sort of supplemental instruction that caused him to point eight was the proper instruction supplemental instruction to a jury question that came after the case was submitted to the jury and during deliberations now wait a nd i don't i don't read it and saying that it was an error i thought i think this report said it was incomplete th conference and if you look here the court was trying to address this perceived error by trying to address it in the answer to the jury question in the supplemental instruction  the question from the jury was can we get an interpretation of refusal to pay the thomases claim without reasonable cause or excuse and that without reasonable cause or excuse was underlined by the jury at the court supplemental instruction was not within the scope of the jury's questions the district court ignored the jury emphasis the underlying portion without reasonable cause or excuse and responded only to the scope of refusal to pay by adding in the term delay this is the prejudice this is the not neutral how can it be prejudicial even in a way i system for the judge to say what the missouri supreme court said nine hundred and eighty four  instructions provided the counsel for closing argument and the counsel table has their argument accordingly and then you change that you're essentially committing prejudice to the party where they're not able to raise accurate it was agreed upon there was no objection and that the court should respond by forming the jury that they should follow the instructions to be guided by the instructions so the objection  was sufficient to the court to allow the court to address that issue and to make any changes there but here where you have closing argument done and it's tailored to that language  instruction it's prejudicial to then respond to a subtle instruction for the court to essentially correct a perceived error when there was no reason my ask the question is because you're talking a lot about being responsive to the jury question and incorporated in your objection i don't know but that does not seem to be the nature of the objection your primary argument today was in the objection which is and we are to redefine this league is the case based on this but i don't understand the jury question to be within the scope of the jury question then within the scope of the objection is that fair i think it was an extent that the to the extent that the original instruction tracked their questions and their question address to there was no question from the jury about what the delay means can we consider delaying the district court's own action and setting out on its own to correct the perceived error in the original instruction when there was not and that's where the prejudice takes place ties your time's getting short counsel so i'm going to direct your right to most of these cases are criminal cases what's the closest civil case that's for you when asked the other side  credibility is paramount here we have a classical case of credibility and we have two versions of how that fire happened and where you have credibility at issue is paramount are you should be given every opportunity to impeach the district court that i deal loud to in order to address these potential prejudicial arguments to ask mr thomas on cross examination if he was convicted of a crime was punishable by over one year and wait for his response if he said yes i was done if he said no i thought the court should allow me to then follow up with a specific crime the district court with and entertaining that proposition  suggestion both for what for the next morning and in the morning we came back and i believe the district court said i'm keeping it out entirely because this conviction essentially is not a crime of dishonesty or false statement and i believe it's too prejudicial what about a a purported alibi of where he was at the time of the fire and mrs thomas claims she was there when the fire happened and we believe that was true and so mr thomas is credibility being  issue of being paramount in this case if because he has a felony conviction and is inclined to live that would call into question his credibility and also refute her story that she was there by herself she testified to right counsel did not commit errors let me st address the supplemental instruction issue as this court stated and to create long the subject is crystal clear to preserve an argument concerning the jury instruction for l or do you party must state distinctly the matter objected to and the grounds for the objection on the record on appeal american modern argued that the instruction was unnecessary outside the scope of the question asked not neutral and was prejudicial however american modern made no timely argument to the district you know the standard missouri pitch instruct the jury as to read the instruction previously given right they said that clearly yes they can it the only objection that they made if anything was on that it was unnecessary to instruction on another is the district court here did so except for possibly argue the argument that was unnecessary to get this they way there are other arguments here the question this court is also a hell bit of permits is required if a judge answers a jury's question as long as it's within the scope of the question asked it's accurate clear neutral non prejudicial of the fall aside case this is the case whether or not there were it was necessary to respond the question so that's why we say we don't believe whether it was necessary or not d show where the law stated by the court and response was accurate and clear american martin raised that issue in their briefing until the very end and i see now that conceded that issue so i'll move on the scope of the question the response the jury gave her the response the court gave the jury's question was clearly within the scope of question the jury's question began can we get interpretation i've refused to pay the correspondent that say she's refusal may be found based on refusal to pay l'amour delay but only if that action was without reasonable cause or excuse that was a clear accurate statement the law and it was clearly within the scope of the question especially when you consider as the court did that they were requesting a copy of the statute which indicated to her they had there was some confusion about what vexatious refusal payment and the court was not required to expound on the underlying portion that asked about without reasonable cause or excuse that would probably would have been a very difficult thing to further expound on and there was no suggestion offered of how to respond the response was also neutral and for one the district court did not offer all the examples the thomases had requested based on the hensley case and that included an inadequate investigation  which we had argued to the jury instead the only example we propose that the court accepted was that delay should be included because the court became concerned as we were and as we argued that american moderns counsel had misstated missouri law concerning delay and closing arguments thus making instruction seven unclear and in reference to the of the record as opposing counsel referred to on this question of the court mentioning erin the instruction what she actually said was that i believe that the instructions previously given have become a misleading given the arguments presented and the fact that in fact we we all know what i think you're all thinking at least i certainly was about a lot of what a lot of law that talks about the the statutory standard and she goes on but the point is because she believed that because of the misleading statements by opposing counsel in your argument that her prior constructs are instruction although it was certainly am i based in an accurate  crossed i don't believe there's a fairness concern when the council intentionally misleads the jury about with the jury instruction up there and then purposely misstate missouri law on the issue there's no right of unfair i'm going by rapidly and it seems to me that the definition of material here is contrary to our patterson case and candidly contrary to most of the many missouri cases how is that just not a great abuse of discretion as an error of all well st of all there was the issue wasn't preserved but counsel no the judge says everything they've raised or deemed really raised at this time about this issue that's got a  claims certainly your honor and as to what you really don't even need to consider because of the fact that the jury instruction given doesn't have a reliance requirement the jury instruction given says as used in these instructions misrepresentation is material if the fact misrepresented it stated truthfully with a likely effect but conduct of those engage in the insurance business acting reasonably and naturally in accordance with the practice usual among such insurance companies under certain circumstances that's from the mirrors case which is the missouri state court of appeals that approve that language is be an actor and that is the closest instruction definition of material in this type of case that we have in missouri opposing counsel merely presented two other alternate cases one was case they cited though was a very general description as the court distinguished that one and said look this wasn't like the court bless this it just wasn't preserved as an objection is that it offered an alternative suggestion and so we can't find error when they failed to offer something to the district court as an alternative instruction so we're not going to find that that's care to offer the one that they had there that's always going to be a difference about application process and not about claims they there is i think that one it did involve yeah right and i is the district court here found in this in this rule and it's really a distinction without a difference when it comes to this claim primarily because the fact that there was no reliance requirement in the instruction but here's the funny thing about this is had there been a reliance version here american modern would have lost it's lost its entire case on judgment the u n because that was part of the argument made that they didn't present any evidence that this was a material statement  material what is in the contract and so they have to prove that was material and the definitions they provided just didn't provide a definition of anything could be considered material there was really no distinction there and so certainly the counsel to roberts i interrupt through two or three of their  definitions match the dictionary the other bridge that is you know the missouri supreme court uses so wide how do you say there do reflect the law in missouri i will concede that may have been within the judge's discretion to offer that definition but that discretion is broad and certainly that is it's what was within the judge's just carries discretion to offer this particular definition of material your   and you say that comes just from the application process i mean what's is there anything is there any other support i've got reasonable reliance type of structure well i think you know this was an m a o i instruction but the perfectly sound definition in that and i agree that and i think opposing counsel even agrees there hasn't been this very case that really distinguished between the application process and during the claim and for that reason that it's this in perspective we're talking about the definition of the term interior right that the court just had to offer a definition that was reasonable and and and i think that this does that it doesn't require american modern to say look if you only had forty nine dollars video games and you claim fifty that were destroyed the fire there for your that's material there has to be something to this that would make a difference in some way and i think this instruction fairly provides that without is that she did that it did and i don't think i don't i don't think there's any basis to say that that happened here or if i can change change this subject a little bit can you point us to any civil cases in the a circuit in which we of the felony i'm just talking about the status as a not that i can recall the top of my head i will say that the cummings case which was brought up before judge ben i want to answer your question about that  case that case is highly distinguishable here although it's probably the closest thing american modern has show because all of the other cases that they cited it was either that it was an affirmative that you know the district court didn't abuse its discretion in offering their allowance something because of the assessment that the in an image of credibility was paramount to the outcome of the case but because it would have revealed prior inconsistent statement made by the point of the prior convictions were directly relevant to impeach cummings statement that he did not strike the defendant plans when cummings had been analysis and and performed it within its discretion and finally credibility mr thomas's cribbage credibility was not paramount in this case like it was in cummings here the jury heard testimony from four different experts received scores of photographs listen to audio recordings and fire claim without reasonable cause or excuse that with the instruction that was provided and there was no misstatement of the law as this court noted there is a significant difference between this representation in the application process and misrepresentation in the group of lost in the claims handling this goes to the the issue of the mis statement of the law regarding the to reality on with american modern in a proper improper way to have to show d why there's a different way and insured is filling out an application with a number of questions and there's a broker involved there