bottle this case involves an insurance dispute arising out of a collision with an automobile and the specific issues in the policy are questions we need to answer is whether or not diminution  value is available under the policy and number two whether or not the insurer should have declared the vehicle a total loss and before i talk about the specifics i'd like to just briefly touch on a few global concepts which i think are included in the brief but may have been more fodder instead of something that i think is a focus and the first the first point is number one a car that's been in an accident has been  repaired has less value than one that hasn't been in an accident now this value is not going to be significant in the case with a run of the mill your mass produced cars but when you get into a case such as this where you're talking about a sports car or an exotic car that has you know if you can afford one of these cars then you're not looking to buy one that's been in an accident so that the value decreases substantially the second point is that this policy is an all risks policy which is we brief this and it's in there it's different than your run of the mill and this isn't to say that diminution in value is a risk or a peril it's just to show that the overall policy is broad and the intent of the parties was to be over inclusive instead of specifically listing what the coverages would be here in this case there is no exclusion  the third point is that this policy is marketed towards your high end consumers a person who has a unique home who has art collectibles that type of thing one off products so their whole marketing is that it's designed for people who expect more and that's not necessarily in the record but we haven't gotten that far in the case and then find the final point is that ohio law has not addressed whether or not a third party claim or sorry excuse me a first party diminution in value claim is viable under ohio law to the extent that there's any common law out there are cases that guide us i think what we really need to look at is the actual policy language i was shifting to the policy language i think in this case when you're talking about the diminution in value claim the important thing is that there is no limit of liability the insurer under the the partially damage or the comprehensive coverage in this case and i think that's significant because the cases that were cited by appellee throughout h provided the actual insurance policy and in each of those policies you will see that not only will they talk about their obligation to repair there's also a limit on the amount that they will be provided  vehicle which is the three hundred one thousand dollars there's no limit in the sense of our obligation is limited for a partially damaged vehicle just to the repair of the vehicle or replacement of the parts actually speaks of diminution in value but i would suggest to you that the lack of including that language is not that your mental to the coverage existing and i think can virtually the opposite is true in the sense that because other insurance policies your run of the mill insurance policies have an actual limitation in that taper for vision without including that limitation the intent is to include that in you couple th value right now i completely understand your question and i think i would put it this way is that the obligation to repair or replace for a partial loss i don't think that is the exclusive remedy i think you're coverage well first off the physical loss we don't the physical laws in this case and i think he will agree that there was a physical loss there caused the damage we triggered poller we triggered coverage they haven't disputed that there isn't coverage they repaired the vehicle so i think at that point we've got the coverage it comes down to what damages are available under the policy and i think if you i don't know if i'm answering your question no limitation on their coverage or diminution of values not included i think if you're looking at a policy and i've looked at quite a few auto policies everyone i've seen have had in some sort of limitation in all the cases they cited i've polled and provided you with a limit tate limit limiting language once there's coverage if they seek to exclude i would suggest that the burden is on them to have to establish an exclusion or that coverage does not exist under ohio law and i think in this case the fact that there isn't this limiting language where it says our liability is limited to the cost of repair there's no such language in there and i think that is significant elements that would be present in the reason that i think you have to kind of look at it in a sense of you know what is this overall policy what is the intent of the parties and i think the intent is to be a broader type of coverage and without that limiting language i think you kind of have a burden on them to establish that this isn't covered but now shifting back question is what numbers to plug into this formula to determine whether or not there is a total loss and i guess the question is the market value as the policy requires as one of those figures and i think where we thousand the right well actually the fair market value or the market value of the vehicle the salvage value your honor would be determined by them which we've learned later was one hundred twenty five thousand ok i was thinking  market value and i think i would matter whether you take your numbers or their numbers i would disagree with that point only because our number of the fair market value is one hundred forty thousand there which would be what we have here is a salvage value they determined was one hundred twenty five thousand dollars i understand but market value and salvage value are not miss terribly the say and had do you get to a quite well the formula is the salvage value versus the cost of repairs versus the total value of the vehicle so we have the salvage of one twenty five we have thirty six and some change in repairs on one side of the equation the next side of the quezon is the hundred  forty or what is the fair market value in our case our expert where we attached is a letter that said i'm out of time would you like me to continue ok our experts said it was a hundred forty thousand was a fair being the market value this this expert determined that if he were to take this repaired vehicle now and put it on his lot he would put one hundred forty thousand dollars retail value on it and that is banned in that is it was actually an attachment there was a letter from a dealer that should be in the record that was attached to the complaint about its credentials nothing about even they just think that the current retail value of the car is a hundred forty thousand dollars and we don't know who we are i think the  problem there is the record had not been developed this was dismissed on a twelve b six so whether or not we could have really submitted affidavits in support of that i think we would've gone past f regarding the state law claims i'll defer to the briefing whether the bad faith everything else i think it turns on  it please the court i'm john travis privileged to represent pacific and then the company your honors this case involves a straightforward coverage question whether the pacific policy provides first party coverage for diminution in value the plain language of the policy consistent with ohio case law leads to the inescapable conclusion that there is no coverage for diminution in value our analysis of course begins with the policy language which is presumed to reflect the intent of the parties the policy says fourth the payment basis stated otherwise is chief judge cole is recognize it's the contract of insurance not common law tork principles which prescribe what is to be paid the policy states in pertinent part for a covered loss to a vehicle we will pay as follows in under partial laws if the vehicle is partially damaged we will pay the amount required to repair whichever is less the damaged parts without the duction for depreciation up to the amount of coverage for each occurrence with labor in parts of lake kind in quality there is no statement here or anywhere else in the policy that pacific will pay for essentially wants to rewrite the policy to include coverage that's not there but the parties of course are bound by the policy language the opponent's argument finds no support in the policy language or the case law in fact the argument appellant makes has been specifically rejected in ohio posing counsel was indicated there is no ohio law on this point i respectfully disagree the samuels worse is nationwide mutual insurance company case of that of the tenth district franklin county is on point and there the insured like mr garrett need to claim under his own insurance policy his policy for first party collision coverage after the vehicle was repaired insured sued his insurer were seeking the difference in value was of his vehicle before and after the accident the court affirmed the decision of the trial court which had granted the insurers dispositive motion finding that the plain language policy did not require the insurer to pay a diminution in value claims now the appellate attempts to dismiss the impact of samuel's by noting that the nationwide policy there provided that the obligation to pay was limited to the cash value of the auto or its damaged products appellant emphasizes that the pacific policy does not use the word limited but that's a distinction without a difference the pacific policy language states that if the vehicle is partially damaged we will pay the amount required to repair or replace whichever reason last which essentially is a limitation the damaged parts without the duction for depreciation up to the amount of coverage which is the coverage limit as the court has recognized the language in both the nationwide policy in samuel's and the pacific policy in this case state what is to be paid neither policy states  diminution in value is to be paid now appellant keeps arguing that this is an all risk policy and that there is no diminution in value exclusion we're not relying on exclusion and all risk policy describes the perils covered not the damages that are recoverable it's an all risk not all damage policy the case was in a court state farm versus appear your court rejected a similar argument the policy holder there said that under an all risk policy diminution in market value should be covered the court rejected that emphasizing in noting that diminution in market value is not a all it's a measure measure of method of measuring damages so there is case law supporting our position i haven't seen a single case ohio case or well reasoned case that supports the play  georgia where they have a seventy five year history of paying diminution in value claims at the one thing but in ohio like most states you read the policy is it covered is it not covered it's just not covered here now again the appellate argues that because there is no exclusion for diminution in value it's covered well the policy doesn't contain an exclusion for sentimental value of an automobile but that doesn't mean that sentimental value is covered the policy in clear language sets forth the payment basis which does not include a diminution in value now tell it makes an alternate argument which is confusing about total loss he says well his car really was a total loss so he should win on that basis and in fact he's claiming that pacific acted in bad faith by not declaring this vehicle a total loss well the policy language again is the touchstone it sets forth the payment basis for a covered loss to a vehicle we will pay as follows as judge gibbons indicated the policy states under total loss if the vehicle is stolen or totally destroyed this vehicle was not stole so what is totally destroyed i mean it goes on to explain two paragraphs hence a vehicle is totally destroyed when the seven value determined by us by pacific plus the cost per in labor in parts of like kind in quality without the duction for depreciation close  necessary to repair the vehicle is equal to or greater than the market value of the vehicle while the numbers don't work the salvage value which the policy provides in opposing counsel is conceded is determined by pacific is one hundred twenty five thousand dollars change the facts doesn't change the policy language this this total loss argument is really a red herring if you look at the policy language it refers to salvage value and we all agree on what selma to you is one hundred  what i believe his expert says and again it's confusing is that where you really need to look at the market value post repair taking into account diminution of value that's what they said in their reply brief that's why they should win because the market value really is the market value after the repairs take into account diminution of whether to problems with that first the policy doesn't say that market value means post repair taking into account diminution in value second that argument runs afoul of ohio law judge nugent and in the show or versus the it national alliance insurance company case the court appropriately hill that the time to determine damages is when you decide if a carer is going to be repaired or not the industry in the case law on and i think common experiences you look at what the value of the car was before oh how much does it cost to repair what's to sell would you value add the cost to repair exceeds the market value it's a total loss the repairs here were thirty six thousand dollars this is a three hundred one thousand dollars car i don't understand how it could be a total loss it's not totally destroyed it's not supported by the case law in fact it's refuted by the keystone in particular the show or case and i think chief judge kohl was was correct in asking opposing counsel where in the policy does it say diminution of value is covered it doesn't say it anywhere there's no support in the policy there's nurse support in the case law there are also additional claims negligent and or intentional infliction of emotional distress they fail pacific was not negligent it did what it was supposed to do and in any event under ohio law there must be an awareness of real physical danger to a plaintiff plaintiff has an alleged that it is similarly the intentional infliction of emotional distress claim is in firm specific acted in accordance with the contract nothing it did can be characterized as outrageous which is the test under the  claim and the bad faith claim also were devoid of merit appellant does not explain how pacific could possess an intent to deny a claim that had not occurred when the plaintiff purchased the policy and because pacific vs twenty when he sees it cedar that's a different parity different insurer different underwriter the parties aren't the same and in any event that case has nothing to do with this case there it was an all risk policy but the court never addressed measure of damages and finally the appellant with claims against the chubb group of insurance companies federal insurance company and shop and son are completely devoid of merit appellants pursuit of those cla has no basis whatsoever in fact or law judge nugent got it right the palace claims lack merit in were properly dismissed accordingly the pacific indemnity company respectfully request appellate oh yeah i know that's a good question judge i don't doubt that they are properly before the court but for the sake of completeness we wanted to address them just so it's clear what our position is that claim is kind of i wouldn't say it's mooted out but if they got it right obviously there's no bad faith so i was going off of if you decide the coverage of issue in our favor i think then the bad faith breach of contract claims i think would be subject to reversal whether or not the intentional infliction of emotional distress would be is another question and i just want to address a few other quick points if i may the samuel's case as it's referred to again i don't want to beat a dead horse but there is limiting language in that policy which expressly limits their liability under a partially damaged vehicle and just to note it seems quite strange that somebody would do better dealing with a third party than their own insurer who  premiums and everything else and who has a fiduciary responsibility to the insured if this was a third party claim i don't think there would be any dispute that diminution of value is covered what we have here is a first party claim an equine to have to look to that responsibility and to the policy should be construed against and the other interesting point that i wanted to raise is that the district court below even he acknowledged the judge and ambiguity he acknowledged that the plaintiffs were the appellant here has established and demonstrated and ambiguity in the policy and i would suggest that when there's an ambiguity then we have an obligation to construe that ambiguity against the insurer in this case if it's ambiguous as to whether or not diminution in value is available as judge nugent had found then in that case we are on the side of coverage and so long as you guys don't have any additional questions i'll go ahead and relinquish the rest of my time and i would suggest that i would ask for the appellate would ask that it's reversed re mandated and that we allowed to be allowed to proceed on the merits ok thank you m