coverage because it was a summary judgment disposition on this case of necessity the the argument in this case needs to be a little bit fact intensive cases an uninsured motor vehicle case grows out of three vehicles two of them were actually involved in the collision and one of the uninsured motor vehicle that left the scene was involved in conduct that helped to cause the collision case rolls out of a wreck where driving at sixty five miles an hour the driving speed he's in the driving lane on his right hand side there was a brown black pickup truck that was driven by a mason bombard on his left hand side there was a brown car the car that left the scene and is the uninsured motor vehicle that was in the the median preparing to make a left turn the evidence in this case is that contra was heading up the road that both of the other cars were stopped the pickup truck on the right at a stop sign the the ground car on the in the median at a yield sign and perhaps not knowing exactly what which one had the right of way at that point with yields and stops and the like the brown car the uninsured motor vehicle waved the pickup truck across a long cross the evidence is that when the pickup truck came across inexplicably the uninsured  motor vehicle the brown car made a left turn in front of it drove in front of it and cut it off and forced the baumgartner vehicle to come to a complete stop in the in that driving lane the lane that's reserved for moving traffic the issue in this case the the issue of is whether or not there were material issues of fact and the genuine material issue of fact in this case is whether or not the conduct of the driver  brown vehicle cost or contributed to cause the collision in this case because there is evidence that that's a genuine issue of material fact the judgment below should be reversed in the case remanded for trial the evidence in this case that that helps us to understand that that it did make a difference that there was a causal connection between the the driver of the uninsured motor vehicle and the wreck is based upon the testimony both of baumgartner and also an independent third party witness elliott baumgartner testified in his deposition that was presented in district court that day that he was waiting for the for the road to clear and that he was waved across he testified that before he pulled out that there was plenty of time for him to have safely cross that roadway that evidence it was obviously a mistake i'm sorry he was obviously mistaken if he thought there was plenty of time well it turned out he was but it turned out he was because and he also testified that rather than being able to drive across at intersection that he was required to stop in the lane that was reserved for moving traffic because this brown car cut off made a left turn in front of him cut him off he had i guess was faced with a choice as to whether or not he was going to have a collision with the brown car at that point or take his chances with the with roger cottle's vehicle did baumgartner give testimony he also testified that he really wasn't very sure on that this and so he was he was equivocal on that but the best testimony that he gave us was eight to ten car lengths as that's my recollection bombards testimony was confirmed by an independent third party witness not just someone who was a do gooder but she was someone who observed what happened and stayed around to talk of the highway patrol so that they would know about the conduct of the brown car she testified also that there was plenty of distance plenty of time for bombard to have safely cross that intersection you know not but that the the the uninsured motor vehicle made a left turn in front of him forced him to stop in the road the both vehicles came to a stop in the road before there was a collision so what's the legal issue the legal issue is whether or not there was whether or not american family met the standard for summary judgment in meeting their burden to prove that there are no genuine issues of material fact and on what and what issue on causation whether or not the the the brown car cause or contribute because of wreck that's that  to weigh evidence to weigh conflicting evidence and make a decision they asked the court to resolve conflicts within the evidence in the car approximately caused the accident and how much coverage there that's probably disputed there were seven vehicles that were insured for decades by the by the cockerels i think they were one hundred thousand dollars on each one of them very clearly the vehicle that he was driving in has one hundred thousand dollars worth of money it's a lot that's important to them they the problem with american families argument in this case is that that they have relied almost exclusively on the testimony of roger cotterell and there's some good reasons why they were not entitle to rely upon that they rely upon his testimony that that he was ten to fifteen feet away from the intersection before the black pickup truck pulled out there are a couple reasons why that cannot be relied upon first of all a party is not even bound by their own estimates as far as distances and speeds that's not something that's conclusive in this case so there's a good probability and a jury could find that he was certainly mistaken in that and that recollection the other thing is that what he testified to is a physical impossibility if he was tending to fifteen feet away at the time that that this black pickup truck was pulling out in front of him and he's driving sixty five miles an hour the black pickup truck the time that it would have taken for roger to get through the intersection would have been one death of one second and during that one fifth of one second the black pickup truck would have been required to go across a twelve foot lane of traffic to end up in this t bone collision which means that in a death of a second that black pickup truck would have been required to go from a complete standstill twelve feet an average speed of sixty miles an hour i think of this is a collision take place where on the divided highway if you actual collision take what took place in the driver's lane in the lane where cotterell was driving twelve feet from the shoulder of the road probably the pickup truck was further back than that but if you give them the benefit of the doubt on that it's twelve feet and the idea that that pickup truck covered twelve feet what happened or whether whether the pickup truck would have been hit regardless of the breath which is the other theory that's exactly our point in evaluating that the court needs to remember that all the evidence has to be construed in the light that's most favorable to us you disregard evidence it's conflicting or contrary you don't resolve those you leave that to juries and this court in in a number of decisions has talked about the fact that in causation questions those are almost always for the jury the general rules of causation questions for the or for the jury except in the in most exceptional circumstances this is a case where we do believe they have to but the question is one that could and should be submitted to a jury even are you going to address the vexatious and i mean briefly we brief that mainly the district court really never got to that portion of the case and the reason they didn't get there is because they found that there was no liability on the uninsured motorist policy to begin with or on under insured motives coverage you know we did not want to have this court have the case reversed in this court and go back and have to have an argument about whether or not  the decision of the of the district court had not been had not been brought up on appeal and was still a binding finding we want to make sure that if this court as we believe you should remands the case will have a chance to  to deal with that in the case of the of the back say she's refusal to pay that is also something where it's a question of reasonable miss the jury instruction on that say she's refusal to pay is ten zero eight and it's one that basically requires three findings that there is a policy that there was a refusal and that the refusal was was on reasonable reasonable this and i think there are two cases that we cited in our always a question of fact and that it's a difficult question of fact because it's a question of intent intent can be proven by circumstantial evidence it must be proven by taking a look  at a general survey of the whole set of testimony and all the facts and circumstances of the case that's something that juries do for us in cases like this in this case there were three elements that are very clearly there were there was  were problems there was a failure to investigate when the uninsured motorist claim was made there was no further investigation ever done no interview with the driver of the brown car not even an interview with baumgartner there was an attempt to for insured to go ahead and make its claim against a third party bombard that's what they put in their letter and there was a failure to accurately account for a what happened then that as to that part of the case also american family made the same fatal error of or a lying on evidence that was favorable to them disregarding evidence that was unfavorable for them and they have i think if you have a question i go on but i'd like to reserve the remainder of my time if i may yes you may thank you judgment and mason bangarra was the proximate cause of the motor vehicle accident here and his actions are what rendered the motor vehicle accident and habitable the courts seem to base that though on looking at the actions of the brown car driver from the perspective of the way versus the actual entry into the intersection and it would seem to me that if you say the wave is not a proximate cause that it's too attenuated or too far removed that that that could be true but if someone enters into the intersection  and creates a hazard such that an opponent of the driver coming from the opposite direction has to stop and that stoppage is forced on the driver because of the presence of another vehicle that seems a legitimate consideration for potential cause why wouldn't that be an issue of fact for a trial and not a conclusion of law i will agree or honor that whether or not never even saw another vehicle in the in the intersection and he never testified that he saw mason bunker well what about is what about the argument that that the trolls not the most reliable reporter that the physical evidence is inconsistent with being ten to fifteen feet away from the collision that the absence of the brown car is not consistent with any other witnesses testimony in that to just absolutely see something that can't possibly be true right and those are uniquely questions that we let juries decide right your honor what the undisputed material fact here is  pulled out in front of roger trial at a point in time that roger trial did not have any ability to act whatsoever he gave three statements in this case immediately after the acts and the police officer during a recorded statement approximately a week later and then during his deposition approximately two years later and all three of those occasions the undisputed material fact here that mr cotterell offered is that mason pulled out in front of him at a point in time that he had no ability whatsoever to react now the distance estimate is not binding on mr cottrell the timing estimate is not  black pickup truck prior to the accident mason baumgartner pulled out in front of roger trial when roger cottrell could not swerve he could not hit his brakes he did not have time what something else and we have to presume the evidence in a light most favorable to the opposing side saw something else side why isn't that a question of fact for the jury because your honor the other witnesses they don't actually cod contradict what mr cotterell said the other witnesses testify that in their opinion they that mason baumgartner would have had time to cross the missouri and courts in the eighth circuit will take judicial notice of the fact that a human reaction time is three quarters of a second and so at the time mason baumgartner pulled out in front of roger looking directly at mason bomber out of the time that he pulled out that he made eye contact with mason baumgartner at the time of the pull out and there's nothing in the record whatsoever that disputes that there's been no testimony offered whatsoever whatsoever that roger control was distracted in any way or looking at anything other than based on bombards vehicle at the time he approached the intersection well isn't his credibility or reliability subject question heritage credible right there could be a dispute about his memory in light of his concussion and that sort of thing that there's created this view there's nothing inconsistent whatsoever is testimony at any point in time immediately after the accident a week after the accident two years after the accident he has been clear on that exact same point and they've offered nothing whatsoever that speeds that fact but within the range of human experience people are mistaken but certain people can write a statement speaking with her i mean mistaken but certain i absolutely saw x to be a fact and then the i mean then they spin back the videotape and you say wow x didn't happen right i mean and then that happens i mean we see that in cases all the time you know you could you know i was a trial judge for twenty five years and i could just tell you that i've heard plenty of witnesses say a is a fact i'm absolutely correct and i know that person is not lying the person on a silly believes that a is a fact and at the point in time that mason boner it was so late that it would not of event foreseeable it would not have been reasonable or probable for the driver of the brown motor vehicle to predict that he would  block at that point in time the testimony that's undisputed about the driver of the brown motor vehicle is that it polled is two lanes headed north there's a right hand lane that mr cultural is travel in and and there is a left hand lane in the undisputed testimony about where the brown car went is that it made a left hand turn into that left turn lane and continue north without mason bombard here there is no accident and you know we can see we can speculate as to the motivations of the individuals  involved and the timing of it but the fact remains that had mason baumgartner not pulled out at the point in time he did so late that mr cottrell had no time whatsoever to it is a brake to swerve or react in any way this accident would not have occurred and mason baumgartner as a matter of law is the proximate cause of this motor vehicle accident or gargles of what happened before and mason baumgartner became independent intervening cause rendering him as a matter of law the proximate cause of this waterbury the accident so you're saying it wouldn't matter if it's undisputed that the brown car entered the intersection in a manner that forced bumgarner to stop using factually that does not matter i think regardless of whether or not whether or not he recalls and testifies that he had to stop no my question is if it is an objective fact that a brown car entered the intersection and force baumgartner to stop you lengths from the intersection that he looked back and again at the brown car to make sure the brown guard was the movie that he looked again back at roger control as he approached the intersection and at that point in time estimate testimony is with respect to his ability to react which courts will they will take judicial notice of and roger control testified he had no ability whatsoever to react the standard is that insurance company may insist on a judicial determination of an open question of fact or law without a of an ulterior i think the fact that i'm standing here and for of you make it an appellate argument in which american family received summary judgment at the district court level and demonstrates at the very least an open question of fact or law and that it shouldn't be the case that american family is panelize or could be penalized potentially for having a case where they are able to obtain summary judgment and then potentially are reversed on appeal and then have to pay vexatious refusal penalty under those certain that would only take place if the case goes back and you lose correct or this would remain an open question what i'm saying is our court we're not in a position to really really resolve that issue at this jun could make a legal determination of your honor this if this case is remanded it will go to trial it will go to trial an american family could win or could lose but that is an open question of law in american family is entitled to i don't think we have a hard time seeing how we could make a legal conclusion on the on that claim at this point if the case goes back if the case if if we resolve it as a matter of law here at this point perhaps though i don't see how you can win on the second point and lose on the first point or your honor i american family has to demonstrate that it has a mentor is defense not not necessarily a prevailing defense just a defense that could prevail and the fact that american family one summary judgment that was  being resolved including facts about the extent to which you actually investigated the claim and carried out a reasonable examination of the the claim to make a decision to deny  and reasonable like a reasonable investigation requires an investigation that is it's it's not and an indian or unceasing investigation reasonable is not extreme or investigation of a claim rely on factual information that additional investigation would have uncovered those of the cases that the point of offered in support of their appeal and  there are no facts the plaintiff has offered at any point that any additional in investigation would have uncovered  if there are not any further questions from the core i think in conclusion that the district court reached the right result in determining mason baumgartner was the proximate cause of the motor vehicle accident at issue this is a case of concurrent fault fault both by mason bombard and also by the uninsured driver we don't dispute that baumgarten was a proximate cause of the collision in this case but having one person has a proximate cause does not preclude there being another party who is also the proximate cause by definition that's what happens in every case where there is concurrent fault missouri cases make it very clear that to prove proximate cause you don't have to prove sole cause yeah what about this argument that is being advanced that essentially mr contrail has made statements he's bound by is statements he's not bound by statements that are of distance but he is bound by statements that that i was paying attention i was observant and i had no ability whatsoever to react i'm puzzled first of all by their why we're talking contrails ability to react the question in the case is whether or not mason baumgartner had time to safely go across the intersection you know people who are not paying attention for example probably there are lots of times without realize that they're not paying attention until it's too late i'm sure that roger cottle didn't take any of a civil action there is nothing in any of this stuff anywhere that says he did but whether that was because there was absence of time or inattention or some other reason that those are fact westerns for the jury these are current credibility questions that should be for a jury there are questions of who and what you believe and those are our uniquely designed for or for suited suitable for jurors to respond that's what should happen in this case i think in part of the the argument being advanced is that because he's a party that it's different and that the parties bombed by their statements in a way that navid witness may not be there may be some legal significance to the to the claim that i had no reaction time and then when judge ottery says accidents on avoidable it's because of some admission on the part of the plaintiff i think that's really where where what the argument is it's being advanced at least in part is that there was once that i'd like to respond very quickly i'm out of time yeah i was but judge autry actually never got to question any question the injured party could have done you know that's just something where judge autry didn't look at that at all he so found that case to be controlling and although you know we're talking about what john judge autrey did this court is doing the novo review  made but it was inconsistent with the standard for review and on summary judgment because it ignored evidence that was was present to show that that baumgardner did have time to get across safely across and that the accident would not