ok are we are we ready to go we're ready to go or right good morning your honors and may please the court in its response metlife said very little about how this breach of contract suit could possibly be right for adjudication and that is not surprising given that by its own account dr matthews had made no claim metlife had made no merely repeated the district court's conclusion restatement that there was a concrete dispute and that the resolution of that dispute did not depend upon in the future uncertain vance that is wrong however because dr the whole point is dr mathis might or might not in the future actually file a claim and if you did file a claim then mid life might or might not deny the claim and the lack of all of that that is the very definition of being on right now it's true midlife cited a few cases for the proposition that a suit for a breach of an insurance contract can be right even in the absence of a denial by the carrier but those were all you did clarify the judgement cases cases for metlife here for israeli or for breach of contract and metlife defense is that your client failed to comply with a condition precedent it seems like you're trying to flip it defense into a right this argument where would you draw the line under your argument your client could keep suing and suing and suing and say well this is only for a two month period claims had been filed and then short period passed and the there there was no payment or there was a denial they could sue for that period if it happened again this is the opposite situation in which by at the time that suit had been final it is now conceded it was a mistake when it was filed and metlife correctly picked up on it and said wait you can't sue us because this case isn't rank that was there that was their motion this case is not right it's the equivalent of an exhaustion of remedies kind of thing and there and  it was part of the case was right so it doesn't seem that you are right that you can sue for part of a breach of contract have that life asserted defense and then try to flip that defense to be a right yes no i don't think so you want to beat because even the parts that clearly were right clearly were right the district court denied summary judgment and it is now a long time later it is agreed that at the time suit was filed there had been no notice no playing no nothing which was a only read between the parties and the court so ruled at the very end of the case whereas if the chords the district court had picked up on and frankly if the if the plaintiffs had picked up on the lack of rightness defense which the which meant life had interposed one day one on the same day that it moved for twelve be six which later become became a summary judgment it moved to dismiss for lack of rightness that motion was correct should have been would satisfy the proof of loss requirement or the met life had waived and now you claim that the court  rejecting must dismiss without prejudice to allow you to fulfill that requirement well aren't you essentially arguing the court has to give you a nd opportunity to litigate the same claim because you did not do everything you could have done the st turning to present the best chance of success if so to answer that more specifically the policy itself has a legal actions clause that says no legal action may be brought in till sixty days after written proof of loss has been provided therefore it is a condition to actually bring a suit it's not a condition to liability in our position is  be sent within ninety days after the end of each monthly period for which you claim benefits and that wasn't done here and your your honor and we also raise the issue of the statutory proof of last provision in our briefs and under the alabama proof of last earth as and when you apply the majority view or interpretation  any claim after the time after september th two thousand and seventeen would be would be premature we wouldn't even have a right to bring a lawsuit and if and if we don't have a right to bring a lawsuit that essentially means that the court would not have subject matter jurisdiction to hear those  didn't bring a lawsuit and you sued for ringback breach of contract for this broader period and and now you're trying to use the fact that you didn't comply with the terms of the contract policy language than the policy language at issue here so i respectfully i'm not persuaded by your part of men well then then let me move on to the statutory proofs of loss because  in this particular case at least the alabama statutory proof of laws was a mandatory proof of laws and and all the courts majority of course that have looked at  but in a in a typical case say that there were five months of proof of laws that had been filed and then a lawsuit was was brought up what about each and every one of the months thereafter does the court have jurisdiction to decide all the all the proofs of loss after the time that the lawsuit has been filed and in the court's decision they say they enter summary judgment on every month after september th two thousand and seventeen does that mean for ever and ever and ever  why didn't your clients that the proofs of loss especially when it was brought to his that i'm i'm sorry i didn't have i'm sorry why didn't your client submit proofs up last year especially when it was prot to his attention well at some point in time he has but but it's just not been my practice that i have to file a lawsuit you continue to file proofs of loss and the proof that she is still working or she has stopped working on a monthly basis i mean it's sort of like it's that to be it's sort of like that  again at what point in time does the does the during the course of the case once you file the case do you keep filing you did not file suit in till june of two thousand and eighteen yet your client stopped filing proofs of loss and said in august he wasn't going to file any more of two thousand and seventeen so months before the lawsuit was even filed no proofs of loss were filed well again we believe that until the proof of lost has been file there is not a right to bring a suit for a period after september thirty and that doesn't go to liability goes to whether the condition to bring the suit has been filed and so at the time we brought the suit the only thing that was an issue were the claims that had been submitted through september thirty two thousand and seventy if if i could move on to you very quickly to choice of law this is one of those rare brokerage in indiana and it was sold in two thousand and six the harm did not arise until some time in two thousand and seventeen reputable he was located in everything he lived in alabama where the policy was issued the policy was delivered to him in alabama is no dispute that the damage occurred in alabama the question is are the facts that the court set forth do those have little connection or more than little connection on the negligence they are just so you know mr st you are into your rebuttal time ok those are on than negligence theory and and so in order to plead negligent procurement we don't have to allege any of these facts in order to prove negligent procurement we don't have to prove any of these facts so therefore it is our position that these facts are have little connection to the cause of vaccines which is negligent procurement and and the court also said that math is presumably relied upon mr moore's representation reliance is not an element of negligent procurement and again it's it's looking at the connection alabama had to the cause contact with alabama it's an indiana license broker they got the wrong policy they didn't they had absolutely no connection with the state of our alabama so our position is that that there was little connection and the facts of the court set forth don't those are little connection to the actual cause of action which is the next negligent procurement thank you thank you looks like the three of you are divided and you're taking ten minutes is that correct that is correct your honor ok whenever you're ready may proceed good morning ma'am please the court jacqueline hearing on behalf of metropolitan life insurance company with respect to met life this case presents a very straightforward insurance breach of contract dispute dr mathis allege that payment was owed under the contract that life denied that payment was owed under the contract when dr mathis failed to establish that he complied with his own contractual obligations which is a required element of his case the district court correctly entered summary judgment on his breach of contract claim dr mathis is now trying to on appeal transform his failure of proof into a failure of jurisdiction and it was never conceded by dr mathis at any time in the district court that he had failed to comply with the contract he argued on summary judgment that met life waived in foresman of that provision that he was not required to comply with the proof of loss in order to proceed with his breach of contract claim so essentially what dr mathis is arguing to the court is when metlife succeeded in its defense says that means there's no longer jurisdiction there's no question that if dr mathis had succeeded in arguing that metlife waived proof of loss or that he in fact complied with the proof of loss there there would be no question that the case was an actual case and controversy that is a ripe case and controversy the only reason he is now trying to make this argument is that he failed in his burden of proof but that doesn't defeat the district court's jurisdiction to enter judgment in favor of metlife and alabama courts are unanimous in holding that the consequence of failure to submit the requisite proof of loss means that you lose on summary judgment it results in summary judgment for the insurer alabama something that suggested otherwise i apologize for that the point was that when you fail to comply with proof of loss under alabama law the result is summary judgment for the insurer and the alabama supreme court could not be more clear that that's how the contract is addressed it is a contract defense and a successful contract defense doesn't result in the district court losing jurisdiction otherwise a defendant can never prevail and the plaintiff is always setting up a heads i win tails you lose because if i prevail there's jurisdiction to award me contractual benefits but if i lose well then that just means i get to go and do over again and comply with the contract and no breach of contract claims are ever litigated in that manner when when a party fails to comply and cannot establish a genuine issue of fact for trial that they complied with the contract cases aren't dismissed for lack of jurisdiction so they can go try to comply with the contract or drum up more evidence to prove that they complied with the contract or that there was a waiver of a contract term and then come back in and sue again that's just  federal jurisdiction works jurisdiction isn't defeated because metlife successfully pursued a contract defense to dr mathis's breach of contract claim and this was  clearly a in actual controversy between adverse parties and that's the standard for ripeness for federal jurisdiction dr mathis to significantly allege that he performed all of his contractual obligations met life refuted that but again that is a typical atypical breach of contract scenario the fact that he was unable to prove that or in his words now i was mistaken that doesn't mean that the court loses jurisdiction over the right case he alleged or again otherwise the result is always a successful defense means the plaintiff gets another definition of an actual controversy between adverse parties the district court absolutely had jurisdiction to resolve that issue the fact that it was resolved in met life span favor and that dr mathis was unable to establish that he had complied with the contract doesn't mean that the court suddenly that jurisdiction suddenly dissipates you know for two years  absolutely insisted that metlife had waived that provision of the contract that he had complied with that provision of the contract you know at that point the court couldn't say well then i don't have jurisdiction  know that doesn't even make sense and you don't evaluate jurisdiction based on the end result jurisdiction is based on is there an actual case or controversy alleged one was alleged a failure to prove it doesn't mean that jurisdiction goes away and in this case what the district court did was exactly correct there are four required elements for breach of contract dr mathis had no evidence what so ever that he complied with his requirements under the contract and therefore there was no genuine issue for trial the district court correctly entered summary judgment for metlife and that judgment problem is mr mathis's army quickly starts delving into pointing out that the nagle gen x occurred in indiana versus alabama and as initial matter the step that we are in is merely looking at the connections that alabama has with the underlying they are here mclean and it is irrelevant that any of the connections may come from indiana and i disagree with the premise that i disagree with the think you can assume that the representations which were directed though to alabama would have also occurred in indiana how does that impact this i don't think it impacts it at all because i think those facts are those facts they can say they are those are all relevant at this stage again and again we are focusing on determining what connections are important we're evaluating what the essential elements are of the whole cause of action and not necessarily those that might be the hotly contested issue by any one party so yes i didn't hear you here's what would be helpful i think is if you would  treatment that was also that was all stuff that occurred in alabama and due to they actually did the kind of unique procedural posture of this that we had a case go on with met life and we were dismissed kind of on the motion to dismiss stage i think that's actually sure it's borne out a little bit already in the designated designated evidence metlife case i mean there's in the record there's designated evidence of prove is it his inability to perform complex surgeries was was as orthopedic surgeon occurred at the alabama bone and joint clinics he you know he subsequently resigned from the plan they can then begin working on an ortho sports associates right this gets exactly to proving the disability which is proving your entitle me to the coverage that you claim should have been provided in the st place he underwent treatment in alabama there after you know financial documentations regarding what he could and couldn't do which would have been a basis for  occupational does the coverage in that damages in the failure to pick your case all of this occurred in alabama and again this is not a this is not i don't anticipate ing prove to be this is actually stuff that's already in there but since my time's  appears to be that the negligence and i'll use your quotes for that i think in our brief for you sparing particles occurred in indiana well that that's not the requirement in order to determine what law applies we have to look at the last overt act that formed the basis that the last act were the final element procurement occur well the last element is images and we just heard of helen's counsel admit freely that there is no dispute that the damage occurred in alabama that answers the st prong of the analysis i would also emphasize that not only the last act occurred in alabama but almost all of the other acts occurred in alabama and when i circle back around to reach that's really interesting sting a really interesting argument and i think it's analogous to the incidental contact within the with other states whether it's indiana or kentucky and the  appellant did not rely upon what my client allegedly sad he would not have purchased the policy that's about four element so now we have damage occurring in alabama we have causation occurring in alabama part of the test the last act occurred in alabama so it intil and in the last the contract with alabama and the conduct occurring in alabama is not significant to this action to the cause of action then alabama law applies so opponents argument appears to be that my client procured the is done either over the phone or over the internet these days and he was in indiana and in my view and i think it's the correct view that concurred in where my client be governed you know it would be in the in the french courts when it where you are especially these days with technology which is probably best exemplified by the fact that i am arguing for the  not physically present in front of you i mean how fornia but i think it's safe to say that i'm not arguing in a california court right now i'm conducting my business right now before the th circuit and just like i'm conducting my business before the th circuit right now my client was conducting business and purposely directing actions in alabama under the in alabama insurance license and he just  the accident just happened to be in illinois but every other contact was with the state of indiana and that's why indiana law apply here here we have every element of this to occurring in alabama arguably we could say that the breach occurred in alabama because my client was conducting business in alabama toward an alabama resident married to i'm sorry to interrupt your into this time we'll put about two more minutes on the clock over for this i really think just that sums up the argument i think any incidental contact here if there is any would have been a call being placed from indiana and a little bit of time left we'll give you a minute for rebuttal ok thank you first of all i'd like to just briefly talk about reliance reliance is not an element it negligent procurement the policy the wrong policy based upon the amid a complaint that was procured i sourced brokerage and indiana broker in indiana  under under the law of indiana you have a you have a source brokerages who all of their conduct in the painting the wrong policy occur in the state of indiana and so no  how could alabama law apply to source brokerage who had no connection to the state of alabama and because indiana starting in the hubbard case and through simon has rejected the theory of dep is cage therefore indiana was has to apply to both mr moore and to source brokerage thank you thank you mr st this case will be taken under advice thank you thank you