as principal over its agent is answerable for its agents failure to forward and insured email coverage be quick and in the case of argued by mark you know something that i think the court missed in its analysis so let me ask you this so it giving you the benefit of the doubt and i'm not sure how far we can go with this but for right now giving you the benefit of the doubt that this e mail made it to the intermediaries maybe to this insurance service center and even let's assume that that's enough somehow as a matter of law or maybe as a matter of fact to get it to markel under this policy as i understand it markel has to issue an endorsement to make any changes you know and if you had sent  over you're sort of the simming that it's it was a rubber stamp that they were going to endorse any vehicle that you sent whether it was a golf cart or whether it was you know a appropriate zan for emergency services or  court level so what we have is a pattern of no indorsements and still coverage in past practices between the two entities so let's assume for a  d that the as you do that the actual e mail was received but there was no action by the nine month period elastic and the law and the two cases we cite the os case and they will case both cover agency and they never get to any to issue about whether an endorsement is issues and i think those cases in particular language was very agency relationship if we can you tell me what's the policy did say that there has to be an endorser right and you're saying that that language was just overlooked by the parties i'm saying that and did he testified that he had ever made a change where he had not gotten a response he didn't testify to that but in reality a change was made and he didn't get a response was that the change was that was made that he got no response to was the e mail prior to this one that took the vehicle off of coverage and substitute another vehicle there was never after the new pope had applied for applied for but i thought in that instance once the new policy came around you could see what the insurance company had agreed to i mean it's the same as an endorsement is just happened to be on the anniversary well your honor the other issue that is confusing about that is in addition to issuing policies there was also insurance cards issued and insurance cards that were showed this particular ambulance that killed my client was a covered vehicle didn't show  t did they issue cards for the same number of vehicles as relisted on the policy or did they issue an extra card i believe your honor that it may be that an extra card was issued because i can't recall and i wish i could you know i don't want to be anything but honest i can't recall if there was but i think there might have been is there any evidence that the the ambulance company relied upon the issuance of that card for vehicle forty four ni treated as if it had been they assumed that it was according to the testimony so it was never they were shocked that there was a claim that this vehicle was not covered so if we argue if we consider that the us case and the will case never ever get to any point of looking at the issue of whether the dorfman simply get to the point there is coverage because of a failure to act in a failure to respond to a application or the to the n request now in this case there was a past history constantly dealing with email and but there was some negative part of that history i mean i'm not getting into that because it seems like these may disputed issues of fact but sometimes the server wasn't working so they thought an email was being sent and it didn't even like get off the ground so there wasn't even a bounce message and then there's this i feel like this should have been the subject of expert testimony by the way but some discussion about how the internal workings of google's e mail service for companies operates and it's intuitively that that like the little cloud picture and stuff so there paddick testified that he had trouble with the main as we all know if we are offline let's say with our phones and we have it in an airport we can send thinking we're sending an e mail but unless we connected to the internet or connected there's never any transmission but in this particular case and that's what had happened to him in the past but in this particular case the evidence is very clear he sent  be right that you may also not be right that the co recipient was the c c inside the company and i'm not you know a computer expert or lancing here but it's possible that internal distribution happens differently it's possible it's you assert that once it's gone out to anybody it's gone out to everybody you know again i feel like there are facts there that need nailing down request to take judicial notice which very well sets forward absolutely settled information as to how the mail works the you e t a deals with that specifically how e mail works now and it draws the line based on when it's out of the senders control when it's within the recent yes and that's what happened here with the fact that there was a c c that was receive when you have an agent of this type which is a soliciting agent you've essentially as an insurance company set up a fortress between you and the insured the insured can never  reach the insurance company itself everything in this particular situation was set up that they could use email and marco expected to be mailed the mere that you are then obliged to hear you're stopped from having any ability to disclaim that coverage or equity would allow you to do it now in other cases e ninety indorsement which would totally up be any need for vin number verification this is a one for one ambulance transfer they've done it multiple times where an ambulance would be taken off for repairs they'd put another one on our cal head every bit of information necessary to cover that vehicle and in liability situations i don't think there's any actual need for an underwriter to ever consider anything unless it's now putting on a ferrari that's going to go one hundred and fifty mph and maybe create a different risk liability but for property damage sure you might want to know what the vin is and it might become a very important issue but not in this project and when you have a business over and over adding vehicle with taking them off just as a matter of routine that suggests there's there's no need for anything for the n b e mail that was just raised by judge ham sides but it really has to do with our jurisdiction at this point which depends upon as i understand it a rule fifty four b certification mr hollande from your point of view if we were to affirm the decision in favor of at this point do you see any possibility that markel would be returned to this larger dispute in some way in the future early off the hook for good i don't know whether some other entity would make a claim against them in the me having you know that at this point it's not in the pleadings ok so they are thank you with with no other questions i believe i have about a minute i'll give you a full minute that's fine thank you morning may please the court this case centers not an agency law but on the basic elements of contract law it's undisputed that when this policy was written the you the basic contract elements as we all know offer acceptance consideration here clearly there was no acceptance of any offer from the insured to amend z now it's your position i take it that even if we had ironclad evidence that the service center got the request to substitute out for four hundred and ninety seven for them for the other ambulance and you know they threw in the wastebasket he deleted it accidently or they you know some somehow never reached markel that in that instance markel has no responsibility even though the service center was acting as its agent markel even if it did know that the agent was passing along this request for the substitution that if mark held didn't look at it and say that's ok with us and send the endorsement back markel is also off the hook that's correct even assuming that the march thirty e mail had been received there would stop all the way through line tomorrow all the way through the line there would still be no coverage because there simply was no response of any kind from anyone sane or didn't respond mark held in response nobody so there was no acceptance of any kind and we heard a lot about past practices and perhaps a justification for thinking they had coverage even though there was no response i think that is entirely inaccurate so wasn't there that i thought i remembered this instance where things were coming right up against the renewal deadline and there was a request to change and i guess it's reflected on the renewed policy correct on feb th two thousand and fifteen which is six days prior to the policy there was a request are correct they they switched in one of their other ambulance the policy issued six days later two of those days were saturday and sunday as instructed now a arguing that the failure to send some other sort of response is evidence of a past practice that they didn't always get a response i completely disagree with that the response was the issuance of the policy now big it's it wouldn't have been markel as i understand because if i'm wrong that would have issued those little insurance cards isn't that something that was done by the service center that's actually correct the service center there was testimony that  although there are only five automobiles covered is covered autos under the policy there was a mistake made and seven cards were issued instead of fifty one dollars of those cards being the ambulance that we are  discussing here today clear testimony it was an error markel was never made aware that those cards were issued most importantly we know that the insured didn't rely on those cards in any way shape or form he testified very clearly he didn't remember if you looked at him or with he didn't but we know that three weeks later he sent a request to put the subject automobile back are allegedly sent a request to put the subject automobile back on the policy if he thought he had coverage because he had looked at these errant id cards why would you send the march thirty e mail or so this case is really very basic contract elements kate we clearly do not have any acceptance we clearly don't have any past practices we have very clear testimony from the  that and all prior instances he would receive a response whether that be an endorsement or otherwise so you think it means that this is really on mr path to except phone called somebody at the service center and said why don't i have the right list of vehicles that the reality is that mr paddick and his testimony goes to this he was unfortunately suffering through illness at the time by his testimony it was basically he sent it again that's in great dispute and then just kind of went on about his other business never did any follow up and like i say never received any response of any from from anyone salt there was no meeting in the step back from this particular policy for a moment this and tell me whether i'm understanding this correctly this tragic accident that apparently as you view it was with an uninsured vehicle is a result of a kind of insurance policy that in essence falls between the gaps but i mean by that is if you if you or i buy a personal automobile poli ability policy we're covered ordinarily for any vehicle we drive right a personal auto b m i z i generally would agree with that and businesses that run fleets of vehicles ordinarily just insure the fleet right that's correct and there are specific fleet policies available which would do that and that would use what would be needed for example if this company were operating larger vehicles and they had to be insured grain under the federal not a vehicle is considered a commercial motor vehicle under the federal regulations and so you know since the tragedy here is with a vehicle operated by a company listed there in and again there finance acceptable to the indiana department of insurance it is it is it absolutely is there is again there are flea policies available which would cover an entire fleet this is most the basic contract elements before ever turning to any discussion of agency law and in both of those cases and in contrast to what we see here the aging question spoke to the insured or at least there was testimony which was believed by the finder of fact that he was told the insurers were told you're covered sensually here again we have absolutely no response so without that basic contract formation you don't ever get to the agency discussion that the the two illinois cases eyes and will discuss so those cases are really very distinguishable from the situation that we have here we also have very clear and unambiguous policy language in the markel policy which states and i'll just quote this policy terms can be amended or waived only by indorsement issued by us and made a part of the file not only was there no endorsement  arguments st and foremost however a stoppel and rian law cannot be utilized to create coverage where it does not exist and that's exactly what appellant is attempting to do here this is clearly not a covered auto under the policy i stop all can't be utilized to create that coverage we've also talked about the past practices as not warranting a basis to utilize the stuff again the insured testified that in all prior instance he'd received responses he testified that he knew something more was required other than simply his email and we've got our ambiguous policy person which states that an endorsement is required to modify the policy as for the general safety arguments the weight limitations in the federal regulations are not mere technicalities they are the basis for determining whether or not a vehicle does or does not qualify as a commercial on with the old which then has the commensurate rules and regulations applied to it so alternately this matter boils down to one of simple con even assuming that march thirty e mail was read it's undisputed there was no response operate the ambulance that's on it but that's actually correct there are regulations laws stanch use which require that any vehicle that's operating whether it be commercial or otherwise must have insurance and we saw in the briefing a hypothetical about what if you made a request and then there was an accident now or later well the answer is you shouldn't have been on the road because that is a direct violation of all right now i see no further questions thank you very much i think you said i give you a minute thank you i think the issue is to be analyzed this way that marco's in action on acting on that request prevents it from disclaiming coverage and there is nothing in wh case you have it would support that because another way of looking at it is to say that although marco uses an agent for purposes of communication it's reserved to itself the right to use or to issue or not issue indorsements and expectation of the applicant and the general public the general public in this instance mr stockton and his family and there's no dispute if the e mail with sand