we're here today because state farm failed the briggs's they failed to properly adjust their claim they put them through four years of litigation that resulted in a jury verdict in their fa on top of state farm's failures or as a result of state farm's failures the bridges sought redress in the southern district of mississippi and that matter was scared to try out the trial court committed errors though that prevented the briggs's from being heard completely being fully heard on all of the issues and ultimately being made home the origins of the trial court er a the bridges took the position that under the vesely case from the mississippi supreme court which i know this court has had numerous opportunities to review over the years that in bad faith insurance cases unlike lots of other most other contract cases extra contractual damages of a certain type not punitive damages of course but extra contractual damages of a certain type attorney's fees consequential damages i think perhaps this court of refer to them as our compensatory in nature in fact the language from vesely says that it that it uses language like it's foreseeable that policyholder would incur these the proceedings essentially allowed only the breach of contract claim to be tried in phase one there was a gross negligence claim a negligence claim and at one point there was a fraud klein the problem with that was is that not and with all due respect i think that the trial court mixed up the substantive claim in the appropriate phase to entertain that claim with the rimini that flows from that claim in the type of damages that flow from that claim now we did take the position and our response that phase one because of the basically case contemn should be not only the substance claims but extra contractual damages flowing from those claims excluding punitive damages which are clearly a phase two issue there's there's a bunch of case law out there that was cited in our brief that supports the notion that perhaps what you're supposed to do is entertain the substantive claims and i'm pointing to fowler rummel share minded payment just to name a few but then and you would address the contractual damages only you would hear the substantive claim but you would be limited in your damages to the policy ones then in a phase two the trial court would conduct this evidentiary hearing which is really has its origins in the punitive damage statute but have this evidentiary hearing to determine whether or not it is appropriate to submit the question of extra contractual damages to the jury in the ultimately the court has to make a decision with respect to punitive damages and it's interesting that in this quarter eco but it's important in this case because the court not only excluded from phase one everything every subset of claim we had except except for the contract claim that the trial judge then took up the issue of the appropriateness of extra contractual damages and what i think he did was he took up not only the appropriateness of extra contractual damages he took up the appropriateness of entertaining the claim and all and he made a decision after state farm l did that quite a bit now i want to be you agreed that some of that evidence came out i will say this the evidence got pretty broad at one point but that the parties were instructed by the court to confine the issues to contractual issues there was an order that says and this is you know this language appears in a lot in several of the opinions that it's hard to forsee discussion of whether or not an insurer breaks this contract without some discussion of the claims handling that took place but we were it was abundantly clear to everybody don't get don't get too far afield we certainly want to was certainly we're not going to go into anything related to pain and suffering inconvenience damages attorney's fees or anything like that but to basically discuss enough of it to give the jury a flavor of how the claim was dealt with on state farms and when we we were put under that order we had not only did we lose the motion in limine we properly objected the i think it's a fair question to say so what ok is this an academic discussion about how you know the courts of mississippi should procedurally address these types of claims it's more than that because the basis upon which state farm motion for judgment as a matter of law rest was of course that we had failed to create a jury question and grew fifty speaks to that but the first sentence of route fifty says that after being fully heard on all issues now in fairness to the trial court once we rested under the dynamic or the rubric that was imposed we were afforded an opportunity to make a pro of what we would show if we were allowed to go forward on our other claims i submit to you that that's not being fully heard on the issues what i can say in a even a thirty minute proffer is not as have to address that issue but we were not allowed to put on evidence in my view in the breach of contract claim that there was no arguable basis for denial we were allowed to demonstrate that they breached the contract that they under paid but we were the mississippi policyholder bill of rights which was probably that's are we got going on ripka you got that one all right the other one was going to be proof you know that would have related to when they received our expert report eight months prior to trial from an expert who they themselves had retained either in the recent past or while the litigation was pending that they didn't follow up on there would have been additional proof about the experiences that the briggs's had with the we've got away from that term its claims handler i think that's probably more accurate because that's about all that happened with we got in and out of there was never any adjusting done other than by the briggs's bridge n estimate the problem with that is is that the witnesses at trial of course it happened in the depositions they actually testified at trial that they completely deferred t data used by that program they did this house was insured in the school just outside of scuba mississippi i don't suspect this court never had an opportunity to be there i have a wonderful place it's remote and it's about forty fifty miles north  meridian mississippi the bass that state farm could ever do was to say well i'm the exact i'm a print out there's an in the zero nine designation and i'm calling it from memory which tells us that that's based on prices from meridian mississippi we said did you ever verify those prices know their own expert who had hour of their own expert in another matter of course who had our report from our despite the fact that they literally testified that the person adjusting the claim could not tell you if the information that it solved that his software was using was accurate to me or that excuse me  they the jury did hear that the jury well the jury saw the demonstration because i asked him i took the estimate and i said i said ok this light bulb amusing as an example it shows a unit cost of two example but i would do that he said i do not his position was state farm physician was that's what the computer told us that's not an adjustment that's just been handled that alone importantly for this case created at least a a question in the mind of a reasonable juror are as to whether or not state farm had an arguable basis for what they did and when judge jurgen took that issue away from the jury he he he ironically stepped into the place of the jury with all double what state farm maintained through their opening statement we were entitled to their position was that we were entitle to either zero dollars thirty six thousand dollars and that would be it and the german or seventy two thousand o question or the first issue was that state farm had put the bricks through four years of litigation i'll submit to you betty if you look at mr briggs letter exudate two thousand and eleven which was exhibit seven a trial this was just a little over a month after the loss and after he got a check for what state farm believed to be the damage to the property of the damaged part of the property he indicated that jeff hill promptly this to the site on april twenty ninth and thirtieth that mr hill took at least two days taking pictures and documenting the extent of damage to your home and that's significant because the insurance policy doesn't cover it's not like  in the plaintiffs are the pellets reply break that showed extensive damage to the kitchen of this home out invite you to look at the hundred pictures that would surround that one exhibit that show rooms that have any damage at all so it's just a little misleading to to look at that one photograph but what mr hill did was try to apply that policy of this loss what was damaged what do we need to pay for and within a week there was a check in  any in that area mr riggs did his own contractor mr riley and he says that on the second page of that exhibit he said i employed a licensed contractor from  made a detailed evaluation and he said it was not economically feasible to repair the house mister reilly who testified at trial did say that he thought the house could be repaired he didn't agree with what mr morgan said three or four years later he's i think to ask to be repaired but i think that even go far enough and if you'll see in our braves mr riley that was difficult as mr brace would not allow states to communicate with mr ri at the trial during evidential hearings at the trial of the case and determined that state farm did what is normal there was given type of back and forth but mr briggs in this case indicated in the same letter scars to show it i tried some of these cases if a case is there always a involving a lot of passion and a lot of high emotion but every case that i've tried and every case i know of that has been tried has been by for katyn either this fashion as this case was tried or in a very similar fashion what what they miss on the flower case in the fellow was one of many cases that have been cited many of them by judge center because he had the bulk of the train the litigation but second phase will include a determination of whether there was any all the reason to deny the client and whether the plan was on title to cover extra contractual band whether it's simple negligence whether it is anxiety emotional that was fully briefed as we did file a motion for summary judgment he carried that forward with the case he did not at that time we need a motion of every opportunity at the conclusion of the case judge adjournment looking at the totality of that they say we got passed around the fact that the jury awarded seventy two thousand dollars the fact that it took so long they say that some evidence from which a jury a reasonable juror found that there was a you know where you  judge judge and said was he thought it was reasonable and i still think it was reasonable that state farm relied on the two men who actually looked at this house before mr briggs decided to have the county tear it down again his right his property but the two only two people who could offer any information on this were jeff hale who was out there within days and mr riley who came within a you know twenty day period was out there four times  riley said you need to tear it down because it's not economically feasible but you can repair it and i think it's going to cost this much more to make them and that's what state farm is trying to get to is what is it you say is not covered that should have been covered  on cases in mississippi for punitive judge jordan did that and the role his role as to whether or not is this evidence that should go to a jury only extra contractual claims as well that is exactly what judge center think judge center was correct and all of his opinions he said they got to hear something and so a lot of something got tried in the forest areas of this trial as far as how the claim was handled when we got to the  jordan was to make a decision do we go forward from here the plaintiffs offered three exhibits two were two different versions of the mississippi policyholder bill of rights one i was the one that the partner that they're standing the other one was the one the state farm had adopted and set out as they were instructed to do with all other insurance carriers the other was supplying handling documents there was nothing in the proffer nothing made in the proffer when they had been that evidentiary hearing is for that purpose  but they have every opportunity and it's my point is there were three documents essentially two that were offered that the jury didn't hear in the first phase of the trial that's typically how these got would have presented testimony is that we're saying not just the document but it's an ev measurements they determine how much she rocks how much paint how much everything we talked for three days about one lot in the hall why no one can say how much of that fifty six dollars odd and lot i mean estimate was for labor and how much was for material i'll submit to you mr briggs didn't ask that you see this his letters that were written that was not what he was asking for was for state forms duty to give him the bigger picture here w experts or three opinions i talked about jeff feel the second one was mine and rightly mr riley is the one who said it's not economically feasible he was the contractor they did the mr briggs or his attorney with time to go and look at the property the third was jody morgan who was designated as an expert witness in the case the first time we saw anything about mr morning was an expert designations judge jordan looked at that your very question very carefully and said and they concluded that  his opinion as that gatekeeper that reasonable jurors could not conclude that study on did not have any reasonable basis to rely on and fifty page detailed estimate with photographs and father rel le information that the time for mr riley the plaintiff's contractor and except that over a very global very large unit pricing approach that mr morgan appl particularly a lot of mr morgan's testimony at trial which was i didn't look at mr riley stuff he does things differently from me i didn't look at his scanned detail estimate it's useless to me that was that was his testimony trial the significance of that is he never saw the house and the policy doesn't cover if you have a storm we pay for the whole house it's what's damaged the only two people who could offer any change hands around that maybe there was a simple negligence complaint that going to that standpoint were that's what judge adjourned understood the negligence complaint and the reason we say we felt like they let that one pass is that there was  did not preclude them from that he just understood and correctly so that that is an extra contractual damage it would not go in in the first place of the trial you know they wouldn't go to the jury and cite give me something during this first p that and that is that's why i'm saying i was a little surprised with that approach to the appeal because that's how we try these cases and i'm not saying we're doing something off the radar here that's what all these cases that are cited here in these breaks both braves mississippi that's how we do it in mississippi just coming i'm so honest i've been here more than once sometimes we don't get it right but i think in this particular case that we did get it right i think state farm fairly adjusted to climb judge judge and certainly came to that conclusion after he fulfilled his role as a few people in this case i'll be happy to answer any further questions if you have i'm not going to sit up here and waste your time just talking the less the court has further questions from tower thank you honor let me address first the reference that mr bennett had made to the cases in mississippi involving coverage and the suggestion that i think it's important to keep in mind those truly involved the scope of coverage i think a lot of those from wind water cases and there was never an issue of state farm i had no way to deny that they covered the property issue in this litigation we were talking about an on current college clauses we were talking about wind versus water it was the bridge contract claim in the negligence claim in a gross negligence for the way that they they they handled the claim or claim to have adjusted it i think that the gate keeping role is a recognized role for the trial court and it's acceptable role but nothing in that statute nor rw fifty contemplates making that decisions and in the absence of having fully heard the proof on all of the issues and frankly i do not think that i proffer after having been limited by our order in limiting and then whether it was one of procedurally on a on a fifty a day or a summary judgment amount recollection is the fifty day that you can make that decision without having heard all of the proof i don't believe i don't believe that the case was bifurcated correctly obviously but i think that the harm in that was that the trial didn't put on enough proof to create a jury question when you got in my case in the beginning and then extinguished it when i rested on the breach of contract claim and i understand that i was given a proper opportunity but frankly that's not the same as putting a witness on the stand like these witnesses we one thing you asked while ago to judge on that that i've been trying to respond to what else would tell that show one thing was the claims handling manual we would have been able to plan to go through there and was not right that we did what we want to allow to to enter the manual itself into evidence for juries consideration to assess the procedural handling we were able to do it through witnesses don't you don't you do this don't you do that but certainly not to go line by line because i believe the trial court's view of that would have been that would be to be too much that you could put the menu in and said this witness will say yes we and we addressed those type issues as part of the pro it went in front of you let me say this i don't think that i could adequately cover the waterfront as a practical matter in a proffer session as comprehensively as i would have been had i been allowed to put all witnesses just to prove those claims i'll sing in the stock but the basic there yes your honor and i guess my fear is i'm going to tell you that there's nothing else out there and that i addressed it all in the proffer and i'm i'm not capable of doing that and i frankly can't remember everything that i dressed in  yes that the arguments were made and we made reference to the fact that we believed in response of the judge a motion for judgment a matter of law that the proffer in conjunction with the proof that had been put on created a sufficient fact bases such as extra contractual damages ought to court in attempt to resolve something was to turn up were mean about that as ben had to correct we discussed that issue very early on in response to your question just a minute and i think it was pretty clear at that point that the parties were not anywhere near