morning your honour's may have pleased the court joe robyn davis appearing on behalf of mr and mrs giraffe's of beck i have asked for five minutes to be reserved for rebuttal and this is a very accepted liability for this i think it was a cooking fire it was an accidental loss and they paid out a substantial amount of money over six hundred thousand dollars with respect to their claim which included  paying for the family it was a large family a son two sons a daughter in law and some kids and them live elsewhere so at the time of the nd fire which occurred and april twenty  sons nico the evidence established guy that weren't drunk at a bar and a good samaritan and then we have videos of this which is kind of amazing the good samaritan went over to him as he was practically passed out asleep on the bar and asked him you know if he wanted a ride home he didn't respond he looked into his pocket they found his driver's license his driver's license had the family homes address she drove him to the home which didn't suffer the previous fire sometime that evening that night the next morning it was discovered that a fire occurred at that house again another fire so at their point in time the facts are interesting but so is the insurance policy so it seems so clear it just says submit to examinations under oath by any person named by us will not  presence of father and the other insured person and sign the transcript there's a very obvious reasons for doing this of course and so i just it's beyond me why it wasn't done i don't know but i you know it is a nonstarter for the reason that i'm going into insured i have to appeared examination and arose if i want to make a claim i have to a period examination and wrote i can't find somebody off the street or find another person means you your relatives risk residing in your household and how can you control how can you control your daughter in law who was the other person who did not appear for an examination under oath you have a claim she doesn't want to appear you can't since residing in your household that seems fair well it's not that she won't go the daughter in law refused to attend examination under oath most policies state if you have a duty or  vigation to ask these people to appear at an examination under oath this thing this policy does not have that language here bother me what at all that people won't show up and now before quote insure stock what was her problem or his problem what they were too busy drinking like he no he wanted three hundred and thirty thousand you said he didn't ask for it his parents asked for it he didn't ask for it he did not make a cl it's the same as those proof of loss cases where the wife doesn't sign don't sign the insurance policy he didn't hire he didn't have the insurance figures period the parents should not sign something if they can't control the people living in their house that simple very  don't now but niko may have been there a michigan case dealing with this innocent person exception that relates to failure to follow it here to a contusion condition precedent for cincinnati where there is an innocent girl insured case in we're in michigan i am in michigan and yeah in barron's versus state farm which was a michigan case mr barron nd wife lisa burns was not a named insured she was a resident relative she did not sign a sworn statement a proof of loss so you know what i'm asking has to be an innocent case that's the line of cases you're in but be applying it to a situation where a condition precedent for getting coverage was not followed in other words that becomes the explanation for not following the condition precedent that's what i'm trying to get at i don't they did a simple insured policy argument even applies in this circumstance they're not innocent they  examination under oath i have no idea i do not know why they didn't testify but i represent the plaintiff's interest named insureds and the plaintiff named insurance appeared for their examinations under oath in under michigan law the would i i don't have the early twenty's i would guess it's early twenty's oh samantha's a mother of children it's a twenty's and it doesn't it's twenty's i believe i mean this kind of thing comes up all the time in our current world so in our current world you can insure your kids up to age twenty six but that's for health insurance and stick with me you can do supped age twenty six suddenly you want to have a claim for your son gets hurt and you want to process it and the insurance company says wait we want to we want to talk to the kid we want to see what happened and make sure this was didn't fall under this exception of that exception the kid says hey i'm my own free agent i'm not showing up i'm busy insurance companies got laughed at the idea that i still get coverage it's kind of a tough luck situation i think if they want to investigate whether there's really a problem they get to investigate that's what this that's what it says i don't  that let's assume that he intentionally set this fire ok let's assume the worst he cannot recover his parents can recover their the named insurance they are the innocent named insured under borman versus state file which was my case under their case the court said the michigan supreme court said the innocent insurance recover ok so  situation so the parents would recover if he said it or he didn't said it i don't know if he said it or he didn't said it it's a strange circumstance but the facts are such that they the parents who bought the policy who continue to pay the premiums under the policy and for which grange accepted premiums during the period of time when they were out of the house in grange knew they were out of the house and knew the whole family was out of the house  i think the interesting issue in this case is not the appearance for an examination under oath because a condition precedent such as a proof of loss the person who doesn't appear is out neato could not get his contents the daughter in law could not get her contents she's not entitle to that because she didn't pursue a claim properly she didn't appear for an examination under oath she isn't about your clients and all the bank records tax records stuff that they supply every no they did not and there the question then becomes for substantial compliance is that material grange just paid them six hundred thousand range had a release which said you can in fact get whatever documents whatever documents you want when i go to an examination under oath generally the insurance company's attorney asked you don't have the documents when in just sign this form and we can get them from the government didn't ask for that they never even asked about anything financial they asked who was where and whether or not the home was vacant which i think is the most interesting part of this case because i think that the case with the policy language says vacant it doesn't say vacant or unoccupied for their reason this home was unoccupied under the morning or honors my name is jason walk around here for grange insurance company of michigan like to start off with where ms davis left off or go to the materiality question as to the documentations of the door so it's not against michigan case law that we cited does say to record that financial records generally are relevant in the context of insurance companies investigation into an intentionally set fire there's also case what we cited which specifically says that of those financial documents things like tax returns are absolutely rolled in the cost of what were you going to get with these records what was the theory here or trying to figure out if the family was under any type of financial strain is  potential for that to the set fire meaning there is possible policy exception then it would be on the the burden of insurance company to prove means motive and opportunity motive one of those motives can be financial so financial documentation what else what else would there be  you could find out there under financial stress what else would it show that's all we need that's all that have enough to figure out they did give a lot that wasn't enough to figure out whether they were under financial stress i don't know that they gave a lot and i don't know that and they didn't give any sitting financially whether they were under whether they were able to pay their bills whether they were reporting income or not whether they had multiple means of income we don't know and so we didn't have that documentation to discussed with them at their examinations under oath and on that point i conducted the examination under oath of mr mr sevan spoke to them specifically regarding those pending document requests and i went over with them point by point the docket issues that grange was requesting and that they had not produced those and they needed to produce those of the rd to do so might constitute a breach of policy terms i'm confused i must be missing something i thought they did give a fair bit so you're saying that they didn't give anything that no they didn't do anything about their financial status they did not give anything about financial status they did produce other documentation but nothing that relate to finances nothing no bank statements no tax records that's right and those are issues that we discussed of them specifically the examinations and what they did they produced no documentation we don't have any goes testimony and so there's nothing there to do is to figure out if it was material or not but nico was certainly the person that we knew was at the last location in the hours leading up to the you have your examination ok so in the event that nico were to admit under oath that he set the fire obviously that would then tell us that he was there he did it and we would know that the exception for i'm sorry the and the coverage position letter which grange sent to the derisive ex through their attorney specifically pointed out that to the extent that nico was involved it would bar his recovery and his recovery only if they were relying solely on the intentional act provisions but  to perform the commission proceeding regarding examinations under oath the lack of cooperation and misrepresentation i'm getting at one of the other things they could have gotten out of me go oh maybe i'm missing something here but if the thing you could get from eco is he set the fire but that wouldn't change coverage as to the family what what is the material thing you'd have gotten out of nikko and what the nomination just involved or just was he there did he set a fire in those are those are obviously material questions to the insurance company investigation we never heard nikko pled guilty i believe to a lesser charge him like breaking and entering so he was not convicted of arson and we never got to talk to him about his whereabouts and activities and what he was inside the house and because grange so we're trying to also determine whether they had any knowledge of nicole's involvement and whether they were providing information to grange that was awesome forthcoming it would not be a legitimate reason to insist on the examination to try to find out if he had any role in requests right in our motion for summary judgment we requested judgment based on the failure before the condition proceed and not cooperation and the vacancy judge granted find that the house was vacant but then found that there was a question of fact regarding whether is not concerned with the intent of a given person it just says specifically that the house is vacant for more than sixty days before the loss and if the loss results from an intentionally set fire then the vacancy exclusion is triggered but doesn't require the insurance company to prove who set the fire so there there's also the intentional act exclusion elsewhere in the policy but that is completely entirely separate from the vacancy provision the exit provision is is neutral  that paid a substantial amount of money to them for the dwelling and the check have been issued and actually put into it put in the bank so that the funds were there to do work but they both admitted they had even decided on a contribution nothing had been done so there was no concern are certainly questions that rangers investigated because of the delay in starting structure most people have a house fire or other type of loss and they want to get back in the house as soon as possible so they start they the especially if they're getting paid by the insurance going to their starting work you had if there had been some dispute over coverage and maybe it hadn't been paid yet or only partially there might be some reason why that or settings hadn't started working but that's not the case here here we've got a fire it was paid it was paid probably it was paid fully there is no dispute over the amount it was paid they simply chose not to do anything so that was obviously a concern for the insurance companies side when you're investigating a nd fire as to why no work it started at this house if they actually intended to do the work so yes that would that would argue that there are other policies out there that use the words they can and unoccupied because other policies use those words then that creates either an ambiguity in this policy or it's just that your vacancy according to its definition  policies should be similarly construed here and in that instance it would mean that grange was concerned with not just the presence of people with the presence of contents in the house and as judge jury noted it is in his decision that the victim provisions serve to address the risk posed by a house with a lack of people or people living there it does not matter to that risk whether their contents are personal property and house so if the if they can see is read to him and to include or require the complete absence of personal property then it results in coming in of ridiculous outcome because you can have a house where no one is live for quite some time but if there's a there's an end table or a chair left in there with personal property then conceivably that provision would not be triggered thus it would be impossible for greece to limit white it either happened or it didn't analysis if it did not then the policy cannot obligate grange to pay the claim under the suits against us provision the language presumably says we may not be sued absent full compliance with the policy terms and conditions you buy nico and smith the duracell not submitting to their examinations under oath there was not compliance with all paul's terms and conditions therefore policy by its express terms says that grange may not be sued so there in the there's there's much i think we have to look at the policy language and not talk about this the reason the vandalism exclusion has a vacancy provision applies we look at the language in the in the language in this policy says they could it doesn't say vacant or an occupied under the law in michigan and throughout the country they can't and an occupied are not otherwise why have two words i mean it just doesn't make any sense and for the insurance company to say now well this is our policy this is the reason we did it why couldn't they just added the language or an occupied and there would be no question it is in big us in that they chose not to be specific and this house did not just have an end table this house was fully furnished and i think i went through  brief the testimony of mr pike as to the contents that were in the home so this was about why they had started yet their st firewood was the records show about the examination under oath testimony that mr game was that they were having trouble deciding upon a contractor and they have since finished the house for money what was the period of time six months which really isn't a tremendously long period of time to not make a decision as to whether to read how to rebuild that very large home but i think based on the policy language in michigan law only claims of those given and the fact is that they were in fact just handed a substantial check from the insurance company that was in the bank and not being used to build their house we know that i'm just curious if there was anything else passed along there was a lot of her that is true and it is true that in that if he set the fire didn't set the fire it really is immaterial to the recovery of the parents and i think grange actually admits that i think the substantial compliance in the materiality with respect to the financial records is a question of fact under michigan law i also believe that the house was not  oath i think that you can't you can't control other people and the courts have recognized that and if it cared who sets a fire assuming you set the fire and the kid who is the bad kid won't appear for an examination under oath i don't know why parents should be punished again they're doing what they can to comply with the policy provisions and their son not appearing is a bad kid i don't think he is i don't know him but if he were if he set the fire it doesn't matter and possible but cooperate in the conversation they want they want well cooperation would be difficult considering that this was not a situation we had a video this kid was from you didn't cause parents they didn't know where he was this wasn't a situation where somebody if he did intentionally set it did it with any forethought it was something that occurred at the time so i think based on these particular facts it would that there would be no evidence that you could get from nico regarding anything he did because we had his video of what happened to him that night and we had the testimony of the woman who took him home he was really in bad