conclusions of law we took no exception with the findings of fact and in fact the conclusions of law that the court i should say the cases that the court relied upon in reaching its conclusions of law were all the cases that we had cited throughout this case they're the right cases it's just from that the result it's clear that the court's analysis of that case law was clearly deficient without a reasonable basis and the ultimate result where damages were awarded contract images were awarded and a bad faith claim is contrary to a number of reported breast decisions and so we would ask the court reverse the trial court's decision using its findings of fact using the same cases that are relied the district court relied upon and reversing it and in order to pull this case in line with control in what we ended up with was a finding of bad faith on the part of an insurance carrier where there was no proof of a contract well you say there was no proof contract that clearly was a contract you're just saying you voided it  never existed but that doesn't necessarily mean there was never a contract well if you're correct your honor it was voided it was rescinded and there are a basket case law in case all throughout the country is that a rescission is the right to file a breach of contract action and have the court determine whether the rescission was proper in this case a breach of don't bring us to the to the chemically that the counter claim would be that it's going to take this up and conclude that the court eared in dismissing the breach of contract could it's tied together and the brass has also unique your honors and allowing only in cases of fire insurance for a lesser limitations period in the and that's what we're dealing with here the policy stated that in order for a cause of action to be filed against metropolitan there had to be compliance with all the policy provisions and you had to file suit within one year where was what if the insurance company hasn't decided on the claim but then here what's the insured to do that there can still be compliance as under the language of the new york standard form policy and the met policy which is in the record there can be compliance cooperation providing information sitting for us and filing within the one year is still compliance because in order to maintain the suit you need to cooperate and file suit within one year now the investigation is still going on what would be the cause of action if the insurance company hasn't made a decision yet on the claim what are they supposed to file in court within a year be a cause of action for breach of contract they've submitted a claim they contend that benefits are due under the policy the carrier has not made the decision favorable to the claimant and the issue becomes there's a contract required decision within a year by the carrier it does not and there's no  be the breach of contract claim that the claim was submitted and that the there was no favorable decision rendered in a time frame acceptable to the insured or you just said the policy doesn't provide that it must be made within that time here is no completion requirement on the cooperation condition and the policy the way you go the way you just defined it as i understand it is there is no valid claim within a year but the suit must be filed within a year and then if the claim is denied after thirteen months the claim for breach you contract is untimely is that really the insurance company's position no your honor i disagree with the characterization there th claim submitted is that benefits are due under the policy the carrier's intitled to conduct its investigation and the insurers entitle to a decision within a reasonable time but even there would there be an obligation to conduct that investigation in good faith yes yes your honor and that the record shows that the investigation was conducted in good faith given the nature of the claim in the invest in the information that was developed ok so you're saying it's a good  faith investigation just took more than a year in this case and therefore there was no breach of contract at the one year mark so they couldn't a filed a meritorious breach of contract claim simply because the investigation was s going on the i disagree your honor the if the if the if the claim is not accepted within the one year period in order for the insurer to have a claim on the policy the new york standard form and the met life policy require that you file suit within that one year if your decision on benefits oh did has not been accepted but you're going to defend on the ground that we're still investigating so we have breached no i don't do that that would be our position your honor the position would be you filed suit within the one year the claims of education if it's still ongoing well then transition into the discovery period or hold the case in abeyance while the claims investigation is completed but we never reach that point and so there's a couple of basket cases that i believe are on point or on or there's you'll see in the briefing materials there's the right decision and then there's the winds decision the right decision essentially establishes out of the basket all you do not need to prevail in a breach of contract action you just need to prove that a contract exists in order to maintain a bad faith claim if the bad faith claim is separate and independent from the breach of contract claim the lynch case stands for the proposition and holds that where an insured is claiming benefits under a policy that does not provide for such benefits in other words or is not a contract that exists that can provide the benefit s there's no proof of a contract with the only reason you saying there's no contract is because you rescinded it was rescinded correct your honor now you say an insured can challenge the company's unilateral rescission is that right correct now would deal with the party have one year from the date of rescission to make that challenge no your honor the wind based upon the conditions of the policy in order to meet all conditions proceed to filing suit any suit on the contract has to be filed within one year but suppose the insurance company rescinds the contract after three hundred sixty four days  made on the day three sixty four and the the policy condition runs on three sixty five is what you're saying no i'm asking you if you were send somebody is policy after say three hundred sixty four days and you're saying insured then may sue and challenge the rescission what's the time period in which the insured may file suit it would be one year one year from the date of rescission director on or no not from the data rescission one year from the da ta last in accordance with the policy provisions of the new york standard form and the met life policy so you do you take it back to where it first question it sounds like you could insulate yourself entirely from a from bad faith claim b literally resending at the end of the one year that is not what happened here and i'm not seeing that hypothetical where if a rescission out occurred on day three sixty four or three sixty six or three sixty six at the investigation was legitimate ongoing then under the way the conditions the policy conditions are written and the way the rascal law is that limitation period is valid but isn't that the claim here is that it wasn't legitimately on going everything you needed to know about this claim to determine whether you would cover it was known well in advance of three hundred sixty five days your honor we disagree with that conclusion the court suggested that well that's what that's the record we have we if met metropolitan had ricin this policy in the first two weeks after conduct its investigation then that would be bad faith metlife undertook an extensive investigation we an insured who tried to insure a single family home and it turns out he had multiple apartments and it was running three businesses out of it that wasn't all known within two weeks we knew we had attended there the time of fire we didn't know the extent of the tenancy how long i've been going on it through the course of a year of investigation or more we determined that he had it's a series of tenants in there upwards of three different apartments so the length of the investigation new information was constantly being developed and the record also show that there was a significant delay occasioned by the insureds conduct in cooperating with metropolitan and i'm in my rebuttal to have any authority that says if an insurance company ricin is a policy unilaterally that the time that the insured has to challenge that rescission is governed by the policy as opposed to the ordinary statute of limitations your honor case law i will i will look into that brief but it boils down simply to this is a contract and if you're going to sue on the contract either for breach or i understand if you're going to sue on the contract for breach of contract but i'm talking now about challenging the insurance rescission of the contract give me authority this is that's a suit on the contract that's governed by the insurance policy limit as opposed to a separate claim that yes your honor  five years to bring their case then with no your honor not a fire policy case based on statute section forty four dash five all one nebraska adopted the new york standard foreign policy and there's a case that  wolf that that the that mr hayes cites and that case of the hale claim so that your arguments regarding a five year such limitations would apply in a hail claim as opposed to fire claim because it's not a s i first i think it's important i obviously the court knows that the standard of review here is so i don't want to belabor that point but mr moran had indicated that there was no exception by the appellant to the facts in this case and that being the case it seems to me that he sort of deviated from that at the end of his argument in trying to expand on those facts so what i'd like to do is point out some of the facts that form the  e bad faith claim but also strongly indicate that at least for fifteen or sixteen months while matt was quote and vesta gating mr hayes is claim it was doing so under the policy and it was using the policy provisions requiring and insured to insured to cooperate with the investigation to gain his compliance and ultimately have been submitted to three different examinations under oath for a total of about twenty two hours of testimony and thousands of pages of documents that were produced at metlife so request under the policy which didn't exist when mr hayes tried to invoke his rights in the four days there was a rescission under the position that matt has taken to trial and on appeal mr hayes would have one day one day to file suit and in this situation  of january twenty fourth of two thousand and fourteen which would have been the one year anniversary of the last there was no reason mr hayes he didn't have a reasonable basis to believe that his claim had been denied because it hadn't actually been denied matt was still investigating although i think that the facts developed at trial show that there was nothing more than a ruse to rebut me when was the rescission formally communal yes your honor was april or sees me august fifth of two thousand  fourteen which was how long after the fire it was a little more than eighteen months after the fired judge so this is a case where the rescission actually was more than a year yes or so under their view it sounds like maybe their position on statute limitations is wrong on reasonable on that but you didn't you didn't file a claim to challenge the rescission so you can't really blame them on that one well we challenge the recession as to what it actually was they called it a recession but it was as the lower court determined it was a defacto denial of the claim if the if you look at the reservation or writes letters that were in the record  each time that match reserved its rights it it noted basically there were two reasons it was continuing its investigation and was reserving its rights to pay or not to pay under the policy one was  that the causation of the fire and other words of mr hayes as an insured did he have anything to do with the causation of fire whether directly or indirectly and the second one was the change in occupancy and the first reservation rights letter doesn't tell us specifically what they mean by that but we the second reservation rights letter which i believe is february eighth a two thousand and thirteen i believe that one did cite to the policy but only to the intentional loss provision is so when we filed the lawsuit in october of two thousand and fourteen i and i sued on breach of contract and i sued for the bad faced faith investigation handling of the claim failure to settle ice and also only saying you were thinking that the rescission was in affected and that's why you framed it as a are many complaints stating that they denied the claim now again i think that that's just a mat a term of maybe it's more of a general term that was used prior to trial and as we got closer to trial matt realized that we can't say that we deny the claim because there was no claim were instead going to assert that there was no contract that there is no contract and there can't be a claim at least not a valid claim that can be submitted as on march twenty eighth two thousand and thirteen and this is in the record i believe in pages hundred twenty seven one hundred thirty one the testimony in trial stablished that as of that date met had everything in its pos that it needed to rescind the policy at least that it put it this way had everything in its possession that he used fifteen months later to rescind the policy it had the application it had the information it had his purse it had mr hayes's file from one way insurance which was his adjuster so they had everything as of march twenty eighth of two thousand and thirteen then there was the first examination under oath june twenty seventh of two thousand and thirteen which was about six hours of testimony that was that was also developed in the record at trial and after that point you would think that matt who has possession a three page application for insurance and six hours of testimony from mr hayes could have made a pretty good determination that point whether or not to rescind the the the policy and so  infer easily from these facts that met took a gamble decided not to resend at that time probably because we're still within that one year statue of limitations not shame on me for not filing something by january twenty fourth of two thousand and fourteen but i think even if i had met would it would probably have successfully had that dismissed because there was no breach as of the one year anniversary there was still an investigation and that segue into our cross appeal there is very different language between the new york standard fire policy and mets policy the new york standard fire policies one year statute states that an action will not be sustainable if it's brought more than one year metz policy says you cannot bring an action or suit against us unless you do it within one year and you must have fully complied with all provisions of the policy so as of january twenty fourth two thousand and fourteen as mr hayes attorney i knew that we had an examination under oath scheduled for february fourth i knew that there were still documents that were being requested and so the investigation was still going so as of the anniversary date of the fire met had not breached the policy met had not made any indications that it wasn't going to pay the claim in fact why would met still be investigating if it wasn't considering paying the claims well it's my position after the fact that matt never did plan on playing paying the claim but instead relied i guess on what relief you want on cross appeal well your hon if the contract claim should have remained in the case is that help you defend against the cross or the met life appeal which says you can't have a freestanding bad faith claim i think it does help it to that extent i disagree with your characterization of the law because i think the law is pretty clear with the brush case and the read that you can't have an independent claim for for the bad faith cause of action  believe that in the bresh case and also cited later and i believe that lowery that you know one of the read one of the principles underlying a bad faith claim is not it is not that there is a policy that creates this relationship  of like a fiduciary relationship instead it's a policy public policy based on good faith and fair dealing and it takes into consideration the very disparate bargaining positions that a a residential insured may have with an insurance company and if you and obviously the facts in this case bear that out because for fifteen or sixteen months mr hayes was producing documents  he was showing up for examinations under oath he had his personnel file open by matt at his with his consent at his former employer's office on april seventeenth two thousand and fourteen which was fifteen months after the fire so he had done everything and met had demanded all of that because their policy required that he submit to those things their policy required that he show up for the examinations under oath and then he produced documents he did all of that and that policy existed even for springfield state bank who was a third party beneficiary of the policy because they were the mortgage holder when he met rescinded the policy or attempted to rescind it on august fifth the two thousand and fourteen on that same day met senate the mortgage payoff check to springfield state bank and that's exhibit i believe it's thirty three in the record and on the notation of the check it says  mortgage i'm sorry dwelling coverage for mortgage and so even cites on their payoff check the springfield state bank that that payment was being made under under provision a for dwellings and their policy so as applied to met there was a policy as applied to springfield state bank there was a policy when mr hayes asked that his claim be paid there was no policy not only was there not one then it has never existed and that in fact was the denial of  i believe that that the fact that the met policy varies in language from the new york standard policy and i believe that mets conduct those two things combined i think certainly push this into a it's i think the statutes forty four five zero one but it has to the policy has to substantially comply to the year extended policy so when the new york standard policy says a lawsuit may not be sustained it's not telling mr hayes he can't file it he says so you cannot sustain it unless you file it within a year and you fully complied so you have basically a dual obligation mr hayes would have the lawsuit going forward and he opposite here and scott it was it was briefed in the motion to dismiss so it's in the record i address it here where the reason here i'm scott's distinguishable simply because it never reached the the question of whether or not a lesser limitations period was otherwise perscribe and it is and so the district court was correct in that regard in terms of the bad faith conduct that the court identified it was an e mail that was sent in may twenty fourteen and in and the august five or seven the the damages that were awarded in no way are connected to that bad faith conduct that was found by the court makes that the award of damages incorrect and must be reversed also the court awarded attorney's fees in this case and for the briefing materials i believe mr h reasons set forth today and in our brief materials we respectfully request that the court reversed the district court's decision and based upon the trial in law nebraska enter judgment favor of metropolitan property and casualty thank you