my name is ken rhino i represent your talents robert and ethel young who are present in the courtroom this morning we greatly appreciate the opportunity to speak with you this morning and appreciate your kind attention and in our case i do have a sore throat this morning your honour's outby frequently drinking from a water bottle or i'll be croaking in just a few moments we file this appeal the following a jury verdict in favor of all state and against mr mr john the basis for our appeal is that the instructions given to the jury taken as a whole failed to properly state the law regarding what all state must prove in order to prevail on its affirmative defense of fraudulent misrepresentation instruction sixteen was misleading and confusing and ambiguous but most importantly it contained serious misstatements of law and was prejudicial to mr mrs young instruction sixteen was a modified version of missouri approved instruction twenty three zero five r twenty three zero five is the proper instruction to give with respect to a fraudulent misrepresentation made in an application for insurance and in certain other contexts however it does not properly state the law with what the insurer must prove in order to the claim based on a misrepresentation in the contents inventory in order for the insurer to deny a claim on that basis it sure has the burden of proving that not only was a representation material but that was also made w willful intent to deceive the insurer this rule has been clearly set forth and established by this court in cases such as united fire versus casualty and historic preservation trust and in numerous other cases such as google versus m f a and can be a basis to deny the claim well do the missouri court cases now say that he proved instruction is sufficient to charge a jury with the element of intent to  honor not in the context of a misrepresentation made in a content inventory again it is if the language is adequate to charge a jury with the element of intent to deceive on a fraud in the ind claim why isn't the same language adequate to charge the jury with that same element in yahoo for a loss claim if we're talking about well the courts have the courts have held have made that distinction clear and our courts made the distinction is a new stand it on them and said that you don't use them on the m a o i because reliance is not an element in the proof a lost case well again that i'm talking about the intent to is adequate to charge the jury on intent to deceive you know as a matter of fact your honor in a case cited by the by all state which was the tally versus night casualty insurance company they cited this case in support of their use of the new or did not know language instruction sixteen but also entirely misconstrued the batali case which actually refutes the use that language in our case here and vitaly the insurer asserted affirmative defenses of both arson and misrepresentation in the submission of the content inventory the tally court concluded that the use of the new or did not know language of m i i twenty three zero five was appropriate for the jury instruction relating to the insurance misrepresentation regarding whether or not the fire had been intentionally set in other words it was appropriate for their for the board of director regarding their arson defense and i read it well right where i thought i didn't see where i think it said with it it says it talks about the various instructions given and the difference between the instructions and it says that the instruction given with respect to the arson issue correctly included the knew and did not know language or did not know language but the instruction twenty one which was the instruction and  footnotes in the footnote footnote seventeen here instruction twenty one was the instruction regarding the misrepresentation in the contents inventory and you see here it says instruction twenty one requires proof that vincent knew his representation was false and that he intended to deceive the insurer that's just a statement as to what that instruction required what's what's your point yeah my point is your honor that the instruction given in the vitale case regarding the loss of personal prada the misrepresentation of the contents less did not have the language knew or should the missouri courts a twenty three point zero five adequately captures the intent to deceive element not in the context of a misrepresentation made in a contents inventory going that in the in the claimant batalla well there were two claims of a tally were two affirmative defenses in the towel and one in the in the form of defense regarding fraud with whether or not they knew what the the or whether or not was correct for four in that directory but again it says but in the virgin director twenty one regarding whether the misrepresentation were made in the content inventory required actual knowledge of falsity so i guess you could use twenty three if you removed the language knew or did not know and inserted actual knowledge of falsity and if you also inserted that the misrepresentation was made with a willful intent to deceive the insurer because again the tally court clearly held that as as long as it insured gets an agent to fill out the claims form that's it that's it that's a free pass on fraud no not at all your honor but they would have to prove that urge you to all it does is up all the instructions didn't say it would be error to have different language did it it just said here's what twenty one included in that case what the district court used for twenty one in that ferrari but again the in our previous appeal this court stated that mr mr young were not bound by the information contained in the initial inventory and that and that they had the right to subsequently explain contradict and correct those in accuracies following the form or have any or have any make any attempt to have actual knowledge they've just they've just made themselves the bullet proof of a fraud cause actual knowledge is the insured can insulate himself or herself from from fraud responsibility simply by turning the claim process over to an agent and i don't think that's what happened in our case or i don't it's not but but but that's the instruction debate we're having we're not talking about the facts in our previous appeal this court said that mr and mrs young were not bound by their signatures now following the decision of instructions sixteen the jury could find in favor of all state or and that also it was justified in denying mr mrs young's claim even though the misrepresentations contained in the initial and tory were not proven to have been with intent to deceive even though mr or mrs young did not have actual knowledge of them of the misinformation initial less and even though they later when they discover those errors before the claim was denied corrected those errors now now you're out of the the law was correctly stated as i understand it an deny the claim and it's the only instruction that should have been given regarding all states affirmative mis representation defense giving both instructions fourteen and sixteen created a mistaken impression in the mind of the jurors that all state had an alternative misrepresentation defense available to it that did not require it to prove misrepresentations were made with willful intent to deceive and that did not require that mr and mrs young had actual knowledge of the false or are you or you think they were inconsistent instructions absolutely and consistent objection made to drop i objected to the inclusion of both yes absolutely on this grounds that they were that they were inconsistent they would confuse the jury because if you read them literally they are in consider your honor i don't know if i used the word inconsistent but my argument made it clear to the judge that i believe that they were and that the only instruction that should have been given with respect to the misrepresentation defense was the instruction of a fourteen and again instruction sixteen if you could give both instructions in the jury looked at both and they said well one of them here requires intent to deceive but this one doesn't instruction sixteen does not require that we find an intent to deceive the the absence of the words of intent to deceive an instruction sixteen alone render that instruction fatally defective and the giving both instructions confuse the jury and greatly prejudice michael see my time is running out here if you have any further questions that we have been entertain them otherwise i would ask that you overturn the judgment of the district court and remand the case back for a new trial thank an answer an affirmative defenses one of which was fraudulent misrepresentation and a counter claim for declaratory judgment the counter claim for declaratory judgment is codified by him a i twenty three  thirty two twenty four which is fraud and proof of a law that does not require reliance then the affirmative defense of fraudulent misrepresentation which is fraud in the inducement does require alliance and that is an i correct your honor so i don't know and i don't understand why this is all duplicate of us why you need to why did you need to why can't the concept why couldn't the concepts of been incorporated the one well we were entitled to an instruction are on our affirmative defense of fraudulent misrepresentation which had to do with statements made by the insured exclusive of the proof of loss in those in that context we have to prove that all state relied on the statements of the specifically with regard to who prepared the cut the first content inventory whether or not they read it whether or not they intended allstate to believe the statements they made in their recorded statement wherein they discussed several of the items of property that later we find out they in fact did not own were not in the garage they did not pay the amount of money for those are separate and apart from the fraud in the sworn statement and proof of loss which is why wrong well the younes would have you believe that it was all confusion and there was over a five day trial the plaintiff's case in chief went for days and they had numerous witnesses discussed the fact that they were confused and they just didn't know and despite several meetings with allstate were all state said are you sure this is your content inventory they said oh yes yes yes we wouldn't defraud the the insurance company no this is just a mistake we made a mistake however the jury found based upon expert testimony that none of the items even in the second content inventory could have been in the last because he would have ruled them out for for the source of the fire and if the jury found in favor of allstate that the insureds in fact committed fraud so if i understand you now you're saying instruction number sixteen related only to the representations that the youngs made about who prepared the content l those but all of their statements outside of the actual proof the sworn statement and proof of loss all of their statements outside the sworn proof that sworn statement purple what what is the representation issue in number sixteen you're saying there were multiple representation numerous representations over a period of three days of recorded statements but the first element and number sixteen is the one of the other of the youngs represented to all the first content list was prepared by either or both of them correct intending the defendant rule rely upon such representation of the amount and value of the contents damaged by the fire laws correct question that sixteen is not just about that represent oh no i'm saying there were numerous representations misrepresentations made with regard to the preparation of the content and torrie over a period of time but you just said that the representation at issue and number sixteen is the representation about who prepared the list that's correct there were several statements with regard to who parrot prepared the list all of which were contradictory day one minute they prepared part of it the next minute they prepared only a sliver of it the next minute they didn't prepare any of it but that's different than saying all representations outside the proof of loss you're now saying it's several representations about who prepared the list that was what ultimately the evidence supported with with regard to the content inventory originally the affirmative defense was pled with regard to multiple misrepresentations but at the close of the evidence and after we looked at what witnesses said what the testimony was we felt that our best defense affirmative defense with regard to fraudulent misrepresentation was with regard to the content the first content and then tori but as to who prepared it and what was in it that is correct and there your first element in number sixteen what is such representation of the amount in value usually refers back to a previous mention of representation doesn't it yes i believe that if you read the instruction it it goes back to the representation that the content list was prepared by either or both of them then why does it say such representation of the amount in value i do not know your honor ok i thought you could you submitted this instruction that the instruction was changed a little bit by the court we submitted it largely this but however there were some questions with regard to clarity and i don't know i'll be completely honest with you i wasn't at the jury instruction conference i just know that judge autry had gone back and forth a couple of times about this instruction and i know that he wanted to you attribute in this language upon such representation of the amount in value to the judge oh no your honor i mean we all hate submitted absolutely what it means then that's my question why do you say such representation of the amount and value if you say such representation refers back to the representation about who prepared  content list i'm just trying to understand what it means our reading of instruction sixteen is that the representation is that the first content list was prepared by them and that the reppert and that they made the representations as to the amount and value which is part of the content inventory list and that these representations were false now it says the representation  my problems with the a m a i approach i mean that you know wagers going to figure out what we're talking about here this morning from the from the bear language of fourteen and sixteen sometimes district judges  times if he had a proposed language change or a proposed addition to the instruction at one point he said that the instruction should include the word recklessness all state agreed and then he went back to his general action that it simply shouldn't be given at all i have nothing further unless the court has additional questions you know a number sixteen the third element refers to the falsity of the contents list you have that in front of you i do not have number fourteen in front of or sixteen i want to start yes i have never seen or you see the third element it says either both of the plaintiffs knew of the content list falsity that's correct your honor but you've just been telling us that sixteen is not about the falsity of the list it's about the falsity of who prepared the list so why does the third element refer to the falsity of the list if that issue is only covered under number fourteen fourteen does not require we see two questions later it's directly addressed ok i apologize your honor for me it to me my my reading of the law is that number fourteen is for proof of the last while there is a second misrepresentation says that refer to the list sixteen does well the list is attached to the sworn statement proof of lost their two separate documents your honor the sworn statement in proof of l will and unfortunately it's not that's that's correct it's attached to the sworn statement proof of loss it requires it requires false swearing whereas the list itself all state relied on their will the list in evaluating the claim refers to the attached list it does it no it has the final numbers from the content and then tory there are three lines worth the actual cash value of the last the recoverable depreciation and the whole lot and the amount and the whole  insurance so you have those numbers on that sheet of paper which correlate with the personal property loss from the content and then tori and then the insured sign it before a notary let's go back to judge first question church housing council do you think the minnesota state courts have said that twenty three point zero five have modified an instruction sixteen adequately in compas has the intent to deceive element of fraud under missouri yes i do and what's your best case for that  been only sixty if you're right about missouri law i am your honor i would assume so i think you're right telly might go on the so why didn't you just say let's go with  believe that the jury had been listening about it and the fact the matters they came back with a jury within two hours think that instruction fourteen with the world would be done there was extensive evidence put on about who prepared the content inventory list and whether they put their figures on the list whether they knew that they were in and do it at sixty there is nothing in fourteen is better expressed sixty is there i understand your position your honor however there are numerous cases in missouri which allow that both are submissive to a jury when there is an affirmative defense of fraudulent misrepresentation and defense or false wearing and there's simply no case law that suggests that the two of them together are duplicative or impermissible there's just no authority for that furthermore mr ryan has given this court absolutely no imperial evidence that this jury was confused they came back within two hours they did not have any notes asking the judge to clarify and they were polled at the end of their verdicts reading and said that they all agreed in and intended that that was their verdict furthermore if mr rhino did not want the affirmative defense of fraudulent misrepresentation in there he could had the opportunity to move for a directed verdict on the affirmative defense or try to otherwise strike it and he did not to strike sixty he had a general objection that he didn't want to correct but he didn't he didn't actually try to strike the affirmative defense of self simply complained as to the jury instruction that it shouldn't be haven't at all furthermore there's no evidence that there's a quote probable effect on the verdict i'm i'm not even sure i don't believe that that's the standard know i just want to say that all state urges that they're entitled to assert affirmative defenses regarding their fraudulent research misrepresentation claim that did not require a