then you're also saying oh but it's also invalid because it is proof of loss which looks like a difficult issue what why do we even have to decide that issue of everyone's agreed the auto parts award should go away well i think the the proof of lost is the prerequisite to getting there and the only thing the magistrate judge awarded was what twenty five hundred three thousand dollars and he's everyone's agreed that should go away skews what are you appealing well i guess that goes to if the one satisfactory was not properly applied and the court is going to reverse judge freshener with regard to hey i think this is what estimate that should have been used still you can't get there without having the prerequisite of the proof of loss which i f they get make traction on their chant appeal the promise see with that and again this might go to the issue of your former colleague you didn't raise it in response to their brief and i know cross appeals get tricky but i don't know that that matters but i only saw it raised in your affirmative appeal the proof or loss issue i think it was an in our first appeal was the proof of loss and also was in our response to there's never been of all across appeal either so this is new territory for me but as far as the proof of los the point of the rule is to have the insurance properly present their claim and then the other point of the proof the last rule actually is to avoid litigation the reason we ask for all argument in this case is that there is a trend in a fight the litigation to where now we seeing these proofs of last submitted for policy limits has some scant documentation attached to it and it's now being treated as sort of this procedural speed bump and somebody has to be right and these policy limit proofs of laws we're now seeing in the northeast have to match exactly that's a great question if it's less than policy limits your honor says you must justify that amount and the lump sum estimate by mr lovato that was supported is four hundred seventy five thousand doesn't justify that amount so it's deficient on article seventy five in that respect but that is your question just because and but it does justify large amounts but it is not a complete failure of the insurer to submit anything they had to submit something in support of that so what's your case it's more analogous to these facts where there is a justification for whatever a cop how do you pronounce his name because the bottom is wrong but it doesn't match exactly doesn't match exactly what is the case that applies to that a village is probably the best case by judge rogers other northern district of florida there's not really a whole lot of cases that goes that where the court will tackle the hard issue of whether or not documentation is sufficient under the policy for specification of the building damages and detailed repair estimates would judge rogers did she never got to that analysis but she did at least give a bottom line your documentation must at least list out the components that are damaged and have a price for each of those components this court set the standard of how you would look at it in the form of decision and what the standard of care is that when you get the quote did the insurer quote provide any sworn information whereby fema could evaluate the merits of the claim that's at page five forty five and there are several district court decisions after that mainly in the eastern district of the reason in america the claim be evaluated here based on the lower amount of  supporting documentation supported correct so the proof will last us for limits that amount was not justified the amount that was supported was this hundred seventy five thousand a lump sum by mr lovato so when you look at that testified at trial based on all these documents my lump sum in my price range that are attached to it he could not tell the trier of fact judge oppression or how he came up with the numbers you can evaluate the merits of the hundred seventy five thousand dot every i and cross every t even though it was lower than what's on the proof of laws would that have been sufficient at least for that lower amount yes your honor and that's the whole point is that under the form a decision has to be enough to where you can evaluate the merits of that my experience of doing this for over a decade females will pay that amount that was justified doesn't validate the proven laws in totality if you do the strict construction it does there's a court want to go there for that's for the court to decide but i in this particular case we don't even get there because that lump sum the person who wrote it couldn't even justify it could explain it and neither could fidelity and what the court did would judge for us to read up on when you look at the ruling see says the evidence before him was enough for fidelity to begin the a valuation of the client and with all due respect all of that was a court found that the pines had complied with article seven j one of the policy which is give the merits of the claim or how does this work just as a practical matter what you submit proof of loss and they look at it do they accept everything that is on there i mean there's any further  it's on a case by case basis and yes sometimes if it comes in it's detailed enough what most companies will do is they was send in the documentation submitted by the insured whether it was bought on their own  public adjuster by their lawyer whatever their representative is they will for that to the adjusting company because they have all the photographs and the documents and say look at this they're asking for more money my client doesn't care i have no interest in it i have a financial  to pay more and as i say look at this and they will make a decision whether or not we need to go out and do another inspection or no the photographs are sufficient that we have right over your clocks admits to think they'll pay correct if it falls check i think the checks and balances with the i p l you and i care also that also apply keep that in balance to where they you're going to penalize if you do pay more than what you're supposed to pay under the program under the rules and regulations if there is an inflation by the plaintiffs he's easy to tell it's the portions of the brief that we shouldn't rely on your opening remark about the brief but i'll be markets that are brief only spends four pages responding to the point just three issues of appeal of last placeholder proofs of laws i don't speak for fema represent fidelity we just follow themas rules but there if you want themas position on a place old approval last there is a recent case called admiralty condo vs fema five ninety four fed appendix seven three eight and that was with third circuit had affirmed themas motion for summary judgment that a place old approval last for limits is not passed muster as for the rules and regulations  this case in this case your client for directing did they say they sent the application on the proof listen back to mr berg and said look this can't be justified on the the claim years for two hundred fifty thousand dollars and that's thirty thousand dollars more than documentation to justify and we're just going to send it back is there a cutoff point where they were they will reject that proof of loss and they reject in this case because they couldn't determine the merits of it it wasn't like ok you gave me a line by line estimate and we did miss thirty forty fifty grand and you could have paid on if you portion they could but in this case since they couldn't understand and evaluate the merits of the hundred seventy five thousand lump if you do that ordinarily do then let me explain how that happens if that happens so where hey let's say a sworn document came in it's attached by line by line estimate he meets all the requirements of article seven  and the company says we know there's about twenty or thirty grand here that we missed in reality with the company does is that the company will prepare a prove a loss for that undisputed amount send that to the insurer to their representative for them to sign an morning and they will pay that amount every dollar that goes out the door will go out with a proof of loss statement you you just with the deficiencies in the briefing you were about to say i want to finish with two points i'd be interested to hear what your two finishing but till two final thoughts on the proof of loss if the independent adjuster because that's what's needed for the court the trier of fact to go through to figure out to take that only this is what you miss and this room i disagree with this price but only you have prepared this item i think it needs to be replaced with the last two thoughts o you please a court my name is martin mayo and i represent the puzzle this case your honor there's obviously some evidence missing here that you know that you're not aware of in this case listen i want to talk about this profile loss right up front first of all you have to understand that with regards to a proof of loss there's almost no information within available to an insured when they're preparing their proof of loss if you look at a standard flood insurance policy it says you need to fill out a proof of loss use your judgment and the justify your damages a on your judgment and justify it and they did not say prove they said justified and one of the traps that for an insured there is a time limit in which you can follow proof of laws after that time you cannot foll and unless you get waiver from fema which all of them may not happen so in a case like this this gentleman's house was so badly flooded he did not have enough money to make repairs to his house he had to file the proof of lost before all repairs were done it was his opinion because he had completely remodeled his house previously that they ultimately cost of the six feet of water in his house was going to four exceed the policy limits that was what he testified to at trial i believe that the total amount that it will cost to fix this house in fact exceeds the policy limits that's why he testified to that and that's why he signed that proof of loss at the time the proof of lawsuits filed there was only enough documentation for one hundred seventy five or so thousand dollars that mr roboto had about a person from law for a spade fit seventy five thousand dollars today that's that's prepared by the insurance care company after they go out and look at the house and they look at it and they prepare it and that's what the it out to eleven months so that before the eleventh month expired that's your last chance to file your proof of loss if you think there are more damages and that's what happened in this case in fact there was a nother report sent after the initial proof of loss with a much greater detail report which had damages that were came close to supporting exactly what the homeowner said there is no provision in the policy or anywhere any of a in f i p i've seen that says you can not say well this is you ask me to for the justify the claim that i'm making here it is and we did that in fact happened another report when our you file suit yes it did we had until a year from rejection  didn't support it or justified the amount that mr berman alleged provided it's my recollection that it in fact exceeded the amount of the policy limits in the policy limits is the most you could ask for that's my recollection of that and so that that's the problem one of the problems we have in these cases there is no guidance for insured when they're preparing these proofs of loss there is simply no information in fact the proof of approval was form itself calls for you to the homeowner to calculate the amount of depreciation that applies to your home there is not a definition for how you were to calculate that anywhere in the policy in fact but the in f up the manuals every document that attached and related to the n f l of people no document explains to an insured how you are to fill out your proof of lost nowhere does it say here is what cost to teach justifying your report now it's interesting if the client chooses to appeal rather than filing a supplemental proof of loss and has go directly to fema and say we we are complaining you're not paid enough money there is an extensive list of documents that they want you to provide that's not related in any way in the proof of last process it doesn't say in review in preparing your proof of last referral over to the appeals process and the documents we require there is simply nothing there all of that was confirmed it's interesting because at trial i asked the about homeowners gaming the system that can't happen i can tell you we have submitted over over one hundred fifty of these claims over one hundred jobs have been resolved and these exact same documentation was used in almost all of those cases as top  documentation there is nothing that prohibits a homeowner for filing for what they believe to be the full amount of their damages even if they're not yet able to support that when they fall the proof of loss there simply no case law and there is nothing  kind of way that people look after the interests of going to file a claim for it exceeds what the reality yes well i everybody thinks alice is worth more than somebody is willing to pay for well i did all i can say is this in our cases we used a mystery to is a man who had been doing that is actually repaired in fact there were a bunch of houses recently damaged in pensacola he did repairs on those buildings and actually rebuilt them after they were damaged by flood he has extensive experience in handling flood claims and we ask him when you write your flood estimate give us all of the things that you understand to be covered by a flood policy and in fact what you saw when you went out there that was actually related to flood in the the thing is that thema hires the w y o o's as their gatekeepers and they have trained personnel to go through these estimates and make sure that all the items claimed are in fact substantiated there are photographs that are taken there are measurements that are made and i can tell you this one of the problems that we've run into in dealing with these cases is that fema will go back to audit the files of the  came back audited they w y l and made them discords an extensive amount of funding and that was one of the problems we had that his calls caused a retraction and a fear by the insurance companies of overpaying claims and so they go the other way in a very conservative in their payments and that's why we wound up with one hundred fifty lawsuits is because our experts and there are also public adjusters reports and many of our claims were to parties other than the insurance adjust had gone out looked at it and in this case it was the testimony at trial by the experts said by the insurance company that in fact the client had been underpaid by over seventy thousand dollars the head of claims for fidelity agreed she said yes we underpaid this claim by over seventy thousand dollars and we're out like no us how just to develop explain such a drastic mistake that's a big mistake that if you're on earth you could if i could understand that it would make this process so much better i've been frustrated by this because that's one of the problems that we've encountered in these claims the arbitrary positions they take and the way they defend the claims just doesn't make any basis but they're in a predicament when they get a proof of loss that exceeds the attach justification right in this case the magistrate found that your client hadn't even looked at the levada justification that was significantly less than the proof of loss but what happens practically in all of these cases is the double y o o s go back and review every claim and in our cases and in a lot of them they actually send the adjust back out frequently if there is a dispute about a claim and a proof of loss comes in why is rim asking there doesn't need to be any correspondence between the proof you lost in the estimate so if your client had signed a million dollar proof of loss he did not do that he didn't exercise a judgment about it but he did use his judgment because he had repaired his own house previous to the storm completely we need to know what he didn't know the documentation that was supporting his claims it does irrelevant the there is every case cited in either the briefs either there was no provable loss the proof of lost was filled out incorrectly or there was no documentation at all there's never been a case it's address the issue of does a proof of the last dollar for dollar have to match the underlying data and he cited the florida district court opinion i don't know if that was in the all that sun sun right that turned out that they never submitted their documentation they followed a proof of loss they never filed any documentation  none of the stuff exist i asked them what help there are evaluation of what constitutes sufficient justification of i ask her what do you go by in your office that you have a list a form a chart not justified if they just but the except all of the point the point i'm making is that you are they don't have any standards there are no standards by which her testimony in sum was we know it when we see it and that's in essence what she said and there is always in litigation like this there's always a dispute about have we substantiated that around and we have managed to settle over one hundred cases do working with the most using basically the same standards reuse in here is trapped in the position of in his own mind based upon his historical experience he knows that the cost to repair his house exceeds the policy limits and if he doesn't ask for that in this proof of loss even if he galveston in galveston else yes and water in this house had six feet of water in it by a measurement of the claims adjuster for fidelity so we judge freshener correctly describe this is draconian interpretation if you follow if you feel if you follow their interpretation when there are simply no guidelines on the penalty i mean it's a good thing your argument that everybody  the damage is right he believes i understand i understand the distinction between the two but in this particular case is testimony was that he is he is caught between a rock and a hard place i can ask for what i know to be thirty or forty thousand dollars consequences if he's shown to have been wrong don't know why the court would not grant him the damages and in fact in this case in fact in this case that we had a complete a two day trial of this case and during the course of that the court heard discussions from both parties about what that injury both of you have practiced in this area lot and you're acknowledging there intermediary role as a gatekeeper so what's the common ground rather than you can always claim x or what you think is unrealistic that the claimant has to at the outset know precisely an estimate is there there's no case law you're saying and you don't have any common ground with their predicament as the only common ground is if you don't do what we did you put yourself at the mercy of thema by following a l loss and requesting that they grant waiver in my experiences that site huge risk to take and we chose not to take that risk that that was a risk that we just weren't willing to ask our clients to take this will address your challenge interpretation because i view the one satisfaction rule of being there's a certain amount of money the double i think there's a double dipping rule that if you get if you're being paid by two different parties but for the same damages and i think is what is in the double dipping  the issue of it indivisible injury and i can tell you in a flood case the flood adjuster and the wind adjuster are highly trained they go out to these houses the policy say we will die when says we're not paying for flood flood plains says we're not playing for wind and they are trying to determine which part of the damage was caused by wind and which part was caused by flood and so when it estimates written by the flood adjuster it deals only with that part caused by flood and the wind only by the wind so in this particular it doesn't meet the definition report you submitted with the bottle he he does say this is all flood damage if he doesn't say i found this other damage that i'm just attributing to wind that wasn't the the role of in a flood claim for the person you hire since we were only representing the client for the fly claim was to identify flood damage we had no responsibility with when somebody else handled the wind claiming there was a separate group and it could separate a justice who dealt was misapplied in this case for a couple reasons number one there is no statement anywhere within enough ip regulations or the fema policy the standard flood insurance policy that allows the use of market by you in determining what constitutes a maximum value it's their actual cash value which has nothing to do with market value so that's number one number two there's no there is nothing within the fema policy that says that in assessing it if the client chooses to sell his home then they get a credit for what he sold the house for the damages are measured at the time of the loss that's not that's ok but that debacle is current aren't going to whether there would never be an assessment as to the wind in the rain those are just that's just working working working out the mathematics but do you have an answer as to whether or not i'm sure it can be better off if in fact wind has been compensating for the same damage that the flood if i grieve it if wind had paid him already for something that flood was being asked to pay that would not be correct they shouldn't do that there is a distinction between the damages and we have been very careful in our attempts in handling these claims never to include an item in our flood request that would have been did not ask for a trial amendment and then so in order it becomes their burden then show that the wind actually paid for something we were asking for a flood there is no testimony in this case that when pay for anything the flood was playing ok most mail thank you very much thank you sir granted and there is a process there has to be a line drawn in the sand the policy says sixty days when there is a huge catastrophe thema does grant extensions of the proof of laws for katrina it was a year for sandy it was two years for hurricane i there's a couple of extensions and it went out eleven months almost a year but they had to draw a line in the sand somewhere and when you that deadline comes you have to submit all of your information your proof of laws and you prove a loss must include the supporting documentation soon before that deadline what if you don't get it if you wait to the last minute you're running a risk but if you get your proof a loss in and let's say it is deficient and then past a deadline you actually get the proper documentation a line by line estimate and that is s to the company or the company has a financial interest to take the right look at it see if there is more money to be paid and then a lot of times the company will go seek a waiver from fema on behalf of the insurer to pay that amount that's what happens  in reality but the drawing of the scene and you have to have it in before that deadline whether it's sixty days a year two years whatever it is be amended you're on it can't be amend it and there are there is another way to do it as well the policy after hurricane isabel there was a new appeal process put into place before you go to the court so if you disagree with the independent adjuster with the company did you can actually do an appeal to fema and  that if you don't like that if you don't get what you want then you can go to the federal courts but you have to have presented all of your claim you have to met all the conditions precedent prior to filing suit or you violate article seven or of the policy one of th things that page five ninety one of the trial record and it goes back to what just jolly was talking about mr b a man had instructed mr lovato to do a lump sum of testified also a page five ninety one that he could have done a line by line estimate but that's what was chose to be done at that time and that prove a lawsuit was submitted toward the latter part of that eleven month extension for submitting a proof of loss and i go back to the question why doesn't every insurance just submit a proof of loss for limits well it's got to be checks and balances that's why they make you sign and swear to a document if you want federal dollars you've got to make sure that hey i have reviewed all of this documentation and i'm swearing an i'm entitled to these federal dollars and there is support for that whether or not it's covered or not covered that's what you debate either on appeal or you debate in court in front of the federal judge that you have to bring with it the properties located still require that separate support be si that these the detached justification no i'm not aware of any rule or case law that says that the estimate has to be signed and swore so in this case you never saw and that's what judge pressure had a problem with in this case is that mr pai redebate his property mr mayor is absolutely correct he thought i thought i saw this group of laws i think it may cost that to repair my property but he never saw the l that for every dollar amount that you're asking for there has to be a proof of laws but to go back to the very first question the very beginning i don't know the answer to that site because that's the second case you raised that he's never had a chance to look at