good morning so i'd like to start this with where we be where we began in this case and that's what the complaint the complaint by i d s pacifically has demanded relief under mass general was chapter and seventy five dollars section one hundred and eighty six dollars for a misrepresentation in the negotiation of a policy of insurance so we look to the negotiation periods in this case and we also look to the language within the policy which sets the parameters for one in negotiation occurs now the posi specifically discusses three separate scenarios when a misrepresentation or action insured or claimant can result in the avoidance of a claim or coverages under the policy now those three scenarios are very important in this case the st is as we've discussed the negotiation of the policy that appears a paragraph eighteen of the policy is general provisions the next is in the breach of the duty to cooperate with an insurer and the final one which is  discussed at length by my brother in his brief is actual fraud intended to deceive by an insured and that appears on the covered selections page of the policy now the issue in this case is really whether or not a omission or a failure to volunteer potentially material information to ensure at any time during the coverage period provisions that are not there now the actual fraud intended to deceive which the plaintiff i d s has relied upon in their brief actually has the science or milling really you have to th don't seems to me that there's no intent to see you at issue here the question is whether your client made material misrepresentations and in that regard you see declaration page reflected that racial information your clients were told it get they'll have to return it if nothing's changed but if something is changed it's got to be reflected in the renewal for they tell the insurance company of those changed circumstances so my position is that the obligation to provide updated information if it was breached under the terms of the policy does not result in an avoidance of the coverages the policy as i've stated speaks to the three scenarios where a coverage can be avoided and that's a misrepresentation and a go she ition and my position isn't why isn't the renewal a new negotiation so the reason why the are new will is not a new negotiation is because there is no requirement for the application is specifically discussed within the policy and a renewal application is discussed as something that an insurer would be required to fill out and return and if they did not do that then the insurer could then it seems to me that that is not in the stereo so the ministerial renewal has to do with the actual process and procedure from the insurer as opposed to the response from the insured it that our position is that the ministerial nature is actually set by the insurer by sending out something that they didn't require an affirmative response and that's something that's consistent in the prior case again that quinn's in the jewel case i believe is is very much on plan i thought the  reflect the original terms of coverage that doesn't apply anymore so your are if i if i may the policy itself again speaks to those actual negotiation periods and i think this is actually a good opportunity to address the issue of a stoppel on those renewal forms there was a cover letter and there's testimony in this case that the cover letter to the fel birds was actually an instruction to the fellow birds as to which coverages which aspects of the renewal to actually review and that cover letter specifically pointed to the coverages the deductibles and the limits on the insurance policy it didn't say anything about looking at the place of garage and it didn't say anything about looking at usual or customary operators so our argument is that there is actually evidence here of in a stop all where they have specifically identified as is their obligation and in the case law the portions of that coverage selections page that they deemed to be material to the felber they cannot now complain that they didn't receive updated information on the portions that they did not specifically point out in so if i may get back to the issue of the policy language we are not supposed to read into the policy provisions that are not there if we look at the misrepresentation and negotiation portion and we look at the actual thought intended to deceive within the coverage selections page taking those two points of the policy in isolation we cannot then read in as the district court did that a failure to update a change that might affect the premium results in an avoidance of the policy outside the negotiation period where there is not a specific finding of fraudulent intent by mr  felber that is the only way we get to an importance of the policy per the provisions of this policy outside of a specific negotiation period where there is no finding again no fraud or fraudulent intent by mr felber we cannot get the result reached by the district questions at issue today one to the celtics had a duty under the policy contract to inform america cries of changes to the principal place of garage ing or customary affirmative defenses have merit my brother stated a couple of times that you can't read terms into the policy that are there as i think the court recognizes the terms that are there very clearly show that there was a duty the felber has had a duty to inform ameriprise of any changes to the principal place of garage ing or customary operators of the vehicle the policy itself says you must inform us of any changes which may have material effect on your insurance coverage or premium charges including the description ownership type of usage and place of garage your auto and household members and individuals who customarily operate your cover selections which is forms part of the policy contracting was mailed to the salberg several times session it was also mailed annually to the felber each time the policy was renewed along with those or new mailings was a renewal form which accompanied the mailings and said you must inform us of any changes which have a material effect on your insurance coverage will premium changes and and so my brother has has brought up the cover letter to those renewal forms there is no principle of contract law that states that in order to enforce a contract provision a party needs to instruct the other party to read the contract careful when when you send a contract to another party in any scenario in the policy is of course a contract has been recognized repeatedly by massachusetts courts does the cover specifically say look at the i mean is it a an exclusionary cover or does it say pay particular attention to these three this is it does not have i mean my brother has pointed out that it directs the insurance to  requirement under the law that that america price had to do that this again is is a contract the full policy was sent to the fellow guards at inception and the coverage selections pages were sent to them each year and as they change their policy i mean this was a period that the policy inception was back in two thousand and eleven the accident was in two thousand and eighteen so this renewed many times they added and and removed vehicles hylander was out in two thousand and sixteen and so there were two renewals before this accident occurred and so there's no question that for this period of almost two years after the highlander and i was involved in the accident was added to the policy the principal place of garage ing for the vehicle was florida  and the cheaper insurance too but that's right although ameriprise i mean it as addressed and in our brief would not have written the policy if it had known that this vehicle was being go ride principally in florida while the insured was living in massachusetts and furthermore the fact that there was an additional unlisted operator resulted in a lower premium for the seller so again no factual dispute that this vehicle for almost two years was garage exclusively in florida and then mr fel is nice misfit sonnie felber by her own admission drove this vehicle about three times a week for at least half the year this was six to seven months during which she had possession of this vehicle and so massachusetts law and it is clear that statements made in an application for insurance are in the nature of continuing representations they speak from the time the applications accept it the policy is issued so at some point the felt burns after understanding that this vehicle can exclusively in florida for two years we've been getting your vehicle and the keys to our niece and telling her she can drive it as much as she wants must have known that these representations that they have given to america price and which are continue to be principle is of it's us as you know is is either misrepresentation is intentional or it results in a lower policy premium or would not have written the policy at all had known the true facts and so that's what we're lying on the latter that this america would not have written this policy if it had known the islander was principally garaged in florida and it's undisputed that it's the be unlisted operator resulted in a lower premium for  with regard to this statute chapter one hundred and seventy five section eighty six well with geico was attempting to do it seems to me is really kind of pigeonhole this into the language of the statute which is rather narrow as the s j c has explained that the statutes really a restatement of the common law duty for insurance companies to show that a misrepresentation is material before an insurance policy can be avoided coasted seems to contend that under the statute it sure can only deny coverage where misrepresentation is made in an application or it's affirmatively made in a policy change request there's nothing in the statute that you know prohibits the type of denial or lack of coverage at issue here kai co hasn't cited any case law standing for that that proposition and of course insurers can deny coverage for misrepresentations and other times i mean when and when an insurer makes a material mess representation in a claim investigation that's well well accepted grounds for denying coverage for a claim and so i think the court's potential interpretation that they get renewals here may have been considered a negotiation of policy that's a fair interpretation but i don't i don't think that's even necessary the misrepresentation th the protective order and just just to narrow the question for purposes of discussion i'll go to the the request for information on policies and procedures for claims investigation and settlement the provision in the renewal instructions that we've been talking about primarily are those which may according to the instructions result in a premium change or or might affect coverage how would an insured know that up front or specifically in this case how do we know whether it may affect coverage if we don't know anything about policies and procedures for claims investigation settlement if we don't know whether the company has declined coverage in those instances where there has been a change in garage ing or customary  of the appeal is subject to a different standard of review than in the the summary judgment and motion for reconsideration the trial judge has broad discretion in ruling on discovery issues those types of o honor just noted general policies and procedures this this is a declaratory judgment action into an issue of coverage with respect to one claim it was into the question is whether any changes must inform us of any changes which may have a material effect on your insurance coverage or premium changes how would a policy holder how would an insured know that if they don't have any idea whether it whether it might affect coverage one way to find out would be to determine whether coverage was denied in other instances where there has been a claim like this honor with respect i don't think we would need to look at other claims because this is this is the clear language of the policy that the policy makes clear that this duty is present there is a duty to i a strict liability it's a strict liability provision i mean who gets to decide whether it may have a material effect well that the court will decide whether it has a material effect because the their own way to do that would be to find out what the practice has been with other claims wouldn't well your honor i think if the critic you are insured here had made an allegation that look i have another claim that's what the court did it in this case actually this motion for protective order was partially denied and the court allowed discovery into one prior claim and there's nothing there because this this this  this effort to obtain information on other claims and broad corporate practices was a fishing expedition are there questions other questions from the panel i'm all set i'm fine thank you thank you thank you both all right i think that about does it thank you to both counsel that concludes arguments for today this session of the arts ball united states court of appeals is now recess until the next session of the court god save the united states of america and this honorable court counsel you may disconnect from the meeting