good morning your honor to misapply it please the court was to hear some good morning your honor i'd like to reserve half of my time for a bottle seven a half minutes you know as i don't want to waste your time i know you don't have a lot of time this morning this appeal comes favor of mr rose who's the nonmoving party on this issue is there evidence in this case that would support a reasonable jury finding that mr rose did not intend to misrepresent or conceal information about judgments against him or tax liens against him when he was a answering questions and his recorded statement in january of two thousand and not that's what this boils down to now if you agree with me that there is sufficient evidence to support such a jury finding then it's clear that the district court teared and that requires a reversal and we go back and we deal with it on the merits you know the district court it drew an inference of intent from the circumstances that surrounded these answers that mr rose gave it his recorded statement and is that really the only conclusion that could reasonably be drawn from these circumstances and the answer is no the other very reasonable conclusion is that mr rose had a complicated business life which i'll describe for you know a few minutes here and given those specific answers at that specific moment in time was not easy for him because these are complicated questions for a man who owns several businesses so here's our situation in this recorded statement in january of two thousand and one mr rose said up front in this two hour interview it was a two hour recorded interview he said up front that he owned several businesses at some point in the interview i believe about three quarters of the way through he was asked have you been involved in many lawsuits and he he answered enthusiastically yes in fact he was a little sarcastic about of they said you you've not been self employed before have you because the answer was clearly yes mr rose in the companies that he had ownership interests and were involved in lots of litigation and he made that clear in that recorded statement to give the name a bit larger to the gesture  that i believe he did you wrong and particularly the lawyer who was involved with mr rosen his company's in a dispute with fifth third bank you know you'll recall if you've taken a look at the recorded statement that mr rose was asked about judgments against him and also against him not just against his companies but against him and he said yes fifty third bank has over four million dollars judgment against me and he said yes you can go talk to my lawyer about that that was the mr rose misrepresented the nature of that lawsuit because when asked about the lawsuit mr rose said that it was involving one of his companies instead of involving him personally well the truth is really that it involved both his companies and him personally when you take a look at the judgment it's against the companies but it's also against mr rose as a guarantor of the company's it's if you if you know people who are in business you can't start a business these days without giving personal guarantees completely answer no it wasn't but that does that necessarily mean that he had the intent to misrepresent or conceal when he gave that factually insufficient answer in the answer no at least not as a matter of law because that's where the district court held was that as a matter of law he had the intent to misrepresent or conceal when he gave that factually insufficient answer which by the way he factually sufficiently answered later but not at this moment in time well you know this is a point some contention is between us and mr harrison but in the examination under oath there was also of course sort of catchall question asked of mr rose any other judgments i mean after having asked him lots of questions about specific lawsuits and specific liens he was asked in the other judgments and his answer was  possibly i don't know which was the most last thing answer he could give you know my point really is this mr rose had an ownership interest in several businesses and those businesses were involved in lots of litigation lots of fights over money mr rose had lawyers and he he freely referred state form to his lawyers later in the examination under oath there were lots of questions about whether his businesses were technically profitable well he referred state farm to his accountants as a police go talk to my accountants you're welcome to talk to them the same way he said you're welcome to talk to motors this was a businessman who had lots of irons in the fire and so to draw the to draw the inference that if he gave it incorrect answer to the question of are do you have any other lawsuits or do you have any other judgments or you know the tax leads to draw the inference that he was necessarily intending to mislead or conceal when he gave an incorrect answer to the question is logically wrong particularly in this day and age there is no such thing i mean in this interview he had already given his social security number the names of these companies they don't part of lots of information about this four million dollar plus judgement against them could there have been any doubt in mr rose as mine did during the course of this two hour interview that he was to be investigated by state farm how in the world would anybody under those circumstances think oh i'm going to pull a fast one on stay for i'm not going to tell them about those judgments against me that could not have been  nobody in this day and age can reasonably think that they're going to get away with that in mr rose didn't think that he just didn't keep all these facts straight miss him but later on in the examination growth he had more information and he gave better under oath was it was several hundred pages a much time oh i see on the record statement my time is up but only answer the question the record stable was in january of two thousand and nine two weeks less than two weeks after the fire the examination or oath was august of two thousand not so about seven months later my time as a thank morning your honour's may please accord grey hairs on behalf of the apple in this case state farm foreign casually good morning mr parker this case is really about enforcing a fundamental principle in a property insurance policy which is that a policy holder must be truthful and honest earn a claim investigation and not intentionally mislead or conceal material facts that are requested by an insurance company during the investigation the policy requires that from its insured it is absolutely crucial to the proper investigation of a fire service particularly suspicious fire like the potential arson fire that was involved in this situation and there is no question in fact mr rose has admitted in this breeze and again an argument that there were incorrect information factually false information that was provided to state farm by mr rose in the case of a question of intentionally did that generally a jury question to decide whether it was intentionally made if he told about some situations and some added intention can be a jury question in some situations your honor that is correct but there is sufficient there is a how case law in the insurance policy to ations both life and propping casually that says intention can be implied from the materiality of the information being requested in by the substance of the information it's being requested in this case and what district courts have had to struggle with in that situation is what happens when and a policyholder just says well i made a mistake i just forgot and what courts have said is you've got to do more than that you've got to come up with some specific information upon which a reasonable jury could decide that in fact it was a mistake that it was something that was just forget i wouldn't suggests that there may be other that there may be other matters relating to judgments and then family the fact that he's not specifically asked about leans in and also the questioner does not return to you know could you itemize those matters for me what about all those things that are found in this transcript of the recorded conversation well in the transcript and again i think to answer your for the first part of your question you can see that there are a number of things that are not disclose which he again does not ever claim that he didn't know about he just says well i decided not to determine that point right i tried referred to somebody else he understands that these liens have been filed against him and they then have the force in effect of judgments at that point and as you look at the number of of those items that are out there they're a credible numbers of them over twenty of them  evidence that was the d s as to what is true financial situation was that a jury could only infer that he had deliberately concealed the formation that is correct your hon and that's what the judge found this case he found that that was implied by the facts of the case by the number and quantity of the misrepresentations that were made by mr rose in this situation again he was specifically asked is there anything outside of gallia county he said no is there anything out of the state of ohio he said no and in fact that was incorrect in this case what is the total now dollar amount of those judgments were well there are hundreds of thousands of dollars or not the seven figures which was  the fifth there but they are hundreds of thousands of dollars i thought it was more like one hundred twenty well it's there it's i think it's over three hundred thousand if you look at the different numbers that are involved there your honor if you told the fifth third judgment have much is left is that what you're talking about that's correct turner that's correct and again let's go back to the fifth third judgment he said it was against the company when in fact it was against him personally but later did they say that he had a judgment against him in that case that's what might later he did your honor yes he did and it is examination under oath after he had been you know found of you know discovered that he had that we understood that there was his judgment out there so then he became truthful about it even then he said well but they've lost at every turn it's been they lost an appeal which was not true at the kid at that time as well what i think we need to focus on is for him to have come up with something that created a jury fact that fact that could have gone to jury consideration he needed to say something like we found in some other cases i had some kind of mental issue or  mental injury or whatever you were asking me these questions and on the front yard of the house where the fire still burning in the background i was emotionally distraught at that point as opposed to what happened here which was two weeks later at a state farm agents just the plain denials to get to something that could create a factual issue in terms of deciding that we need to go to a jury as opposed to decided on summary judgment your strongest case that you things analogous to your position well i believe it's a parker case your honor which is a state court which talked about the implication of finding that there are you can find intention from the misrepresentations that are made when found intention is not the thing you know  must that intention and therefore no reasonable that can conclude otherwise no question your honor that is a different standard with what they but what they are saying is you cannot for close a court from determining based on the summary judgment record that intention is implied and there is no other reasonable jury determination that can be made and that in fact is what this court or what the district court decided in the case of clarified that in the reconsideration opinion that that was his finding based on again the extent and the nature  misrepresentations that were made again the issue is that mr rose has never claimed that he didn't know about these judgments that he didn't know about the liens he doesn't contest city failed to disclose and he doesn't contest that the information was absolutely material to the investigation and it's important again to distinguish what the fifth third issue why it's important that we understand whether the something is personally judgment against him as opposed to his business obviously both are important in the overall financial picture that insurance to look to but personal debts are even more important because it may may well be that instance mr rose was not able to flush those down through a bankruptcy filing but because they are personally against him it could be that there's a for some nature of something that's into conduct or misconduct that a bankruptcy discharge would not apply to and again that is more personally involved in terms of his situation he's not able to use a corporate shield or some other defense too and that's why the distinction in his misrepresentation about that judgment being only against his company and not him personally at the record statement was so important again as the judgments and liens he just sort of directs well you know gallia county there might be something and again  expressed it was asked about other counties other other states that were out there and he said no there are no such things with in fact we found that there were there were a number of them and there were those judgments against him in those other other counties other states he doesn't explain why he failed to disclose those he doesn't provide any any kind of explanation of that and those things were again material to the investigation to understand that this isn't aren't just financial problems that were limited just to his county but  in fact are multi state issues multi county issues that involve judgments against him personally important for state farm to understand in terms of assessing his financial situation again important in terms of mr rose's protestations that he didn't initial problems because even though he had a lot of debts and he had a lot of issues he could still make payments when they came due so that state farm need to determine what's out there in terms of these liens and judgments are their payment plans if they even have been settled or dismissed is or some arrangement to make installments that we need to understand and determining what his overall financial picture is and by failing to disclose those in fact denying those he frustrated the investigation as has been proved by state farm the summ judgment proceedings i also want to turn to the bad faith claim mr rose made a bad faith claim the court below granted summary judgment as to it and there was no briefing of it by mr rose you reverse on the breach of contract claim then the bad faith claim goes down as well and that is not the case there is obviously a separate legal standard for a bad faith claim a plaintiff has to show that the state farm had no reasonable justification for its decision it's a that is his position and it's incorrect because there is a son might be but i don't think that's his position not what you originally thought i guess what i was trying to say is what his position is is the bad faith climb rides with the breach of contract the riser falls and that's not the case because there is a separate standard and in fact the district court even though it said that because i found with the ultimate the elements of the two are different that is correct and he is correct in correct because there is if we rebirth then the district court is wrong on the bed client no your honor that is not correct and here's why because ohio says there's a different standard there and the court went on to say that even if this were not something where we granted summary judgment i find that because there are factual issues regarding the arson defense there is sufficient justification for state farm's decision withstanding whether i'm right or wrong on that that might be that is the case your honor yes might be and that's why i wanted to urge this court why even if there is any issue regarding the breach of contract claim the judge's decision on the bad faith claim should also be in the determination about bad faith that because there were there factual issues regarding the arson defense that made that supported state farm's decision that as a matter of law then therefore they was reasonable justification on the bad faith be considered a throw away well again because he's talking about a different issue which is the arson vs the misrepresentation issue i think it's clear that he did find both both of both reasons supported who does in fact both all those arguments were briefed at the at the district court and again the initial position is they have not but you know it would be more natural to that even if that were not of the mission for denying the client the in those issues were before the court in argued and there's a separate basis for affirming the bad faith claim you know my time is short i just want to wrap up again to say that it's important here again that insurance company be able to rely on the truthfulness the completeness the honesty of its insurance answer in its investigation a far investigation is not a catch me if you can type investigation we need to be able to rely from the get go on the honesty of the insureds in the information they provide  again to reinforce this requirement the policy or allows us to void the policy if there has been a misrepresentation or concealment the court properly found there was in the core polow and we asked this court to affirm the district court screen of summary judgment to say farm on these issues honors a few points on the less substantive point that you were just disgusted with mr harrison the question of the bad faith claim the section of the judge's order that addresses the bad faith claim only focuses on the fact that the judge had just granted summary judgment on the coverage claim and said because there is no coverage i find there can't be a bad faith so really that is the reason why the judge did what what happens so really if you reverse on the this summary judgment issue really intend i believe it is appropriate for the case to go back in its entirety and for the district court to address if the if the district court wants to say that because there is a an arguable question that there can be a bad faith we'll deal with that at the district court level but that's not what the district court did that made us appeal the district court we're appealing the district now a few of the things that mr harrison touched on he said that under the case law that he's given to you in tension can be implied or i guess inferred by the court from the circumstances well it's interesting when you take a look at those cases what the what the facts are that lead courts to do that but pretty much all the cases are either cases where the insured ad ns that they lied there were several cases cited by state farm that had that set of facts or you know mr harrison's strongest case i gave you the parker case this is a great in his recorded statement i don't gamble and then later said i make a living as a gambler now that is a circumstance where i believe the district court had the ability to draw up to draw what it felt was the only reasonable inference that the insured was not being honest when the guy says i don't ever gamble and then turns around and says i make a living from gambling yeah i can best to take a look at the pepper vs heart for case really because it focuses on the very specific issue which is when you're talking about intent to misrepresent or conceal that is normally a jury issue and you're going to have to have a pretty special set of factual circumstances to take that question away from the jury and look in fairness mr harrison he has cited some cases that have th special facts plenty of cases where the insured you know they've realize that they've got been caught telling a lie and so they fess up well that's not our situation here mr rose wasn't line he just got it  wrong it's a complicated set of facts for him he hires lawyers and accountants to help him keep track of all that stuff and he has got a wrong on the specific day when he was given a two or an interview less than two weeks after his house burned down and you say these why more space speeders are more likely to set fire to their own house right i guess so a bunch of them were dismissed some of them mr rose would have had to have a top machine to know about them because these dangerous arose after he gave both his recorded statement in january two thousand and nine and his examination under oath in august of two thousand and nine million this is an important issue many of them were tax liens against just the companies that he has an ownership interest in you know it's an issue we had we didn't i frankly didn't develop enough in our briefing you know mr harrison makes a huge point about oh mr rose misrepresented the nature of that of that fifth third lawsuit because he says the judgment was against the company well i have to respectfully disagree with mr harrison's recitation of the facts please take a hard look at that recorded statement the questions first were asked about lawsuits and then later the questions were asked about judgments so when it came to lawsuits the question was asked are those individual lawsuits of mr rosen known both my company and you'll see this it's all right on two pages of the thing  and then when asked ok are there any judgments against of you so the quit right after the question about these companies he was asked any any judgments against you and mr the interesting thing about the examination of under oath you know that mr harrison says that mr rose didn't dispute that he didn't disclose well you know it's interesting mr rose gave a recorded statement that he give an examination under oath and then he gave a deposition you know it's not called a come give a speech under oath it's called an examination and or of they need to ask you the questions you will look high and low through that examination under oath it's in the record and you're not going to find questions about judgments at least not the catchall do you have any other judgments against you we wanted to put in the record the dress to court would let us in the answer was i don't know one last thing i'd like to say you know mr snow says that these questions are crucial to the investigation i say that in two thousand and fourteen that's just not true anymore once mr rose gave these folks his social security number if i may finish up my red lights on very  quickly i will two thousand and fourteen once i give someone a social security number and i know i'm being investigated the idea that they need to ask me how many judgments have against me that's just not true what they need to do is go find it for themselves that's the most accurate information they're going to