facilities seventeen thousand four hundred dollars square foot building located in downtown make near the campus of the marshall school the it was going to satisfy the coverage under the contract within thirty days sue it instead waited approximately seven months to make that determination well settled that the appraisal process told the running of a contractual limitations period in this particular case the court found that the between the appraisal process and of the claim under count one and to that i would like to stress two different points one count one we respectfully take issue with the court with regard to that ground because the purpose of the appraisal board structural damages was to determine the total amount of the loss upon which the plaintiffs claimed in count one was based they can't one the basis for that is that that occurred was forty months two minutes remaining that has been damaged by mold and you look at that property and its value in comparison to other properties that are not condemned now that is something that is not but after after the mold contamination i believe it's worth a one million dollars that those other comparable properties are worth a one million and a half dollars and still that is something that does not require special expertise it's simply a matter of logic which most if not all lay persons can should be able to understand therefore that would qualify as being a too late opinion dr grange testimony one was not sophisticated enough to be an expert because experience was not such that he could be an expert but also too yet nearly ten years later on the claims that it still is owed more money at the mr middle district of georgia properly determined summary judgment in favor of its proper st the district court correctly determined on these claims for extra contractual board rd the district court rightly determined that on the has failed to prove the essential element of damage on its diminished value claim and finally because each of the breach of contract claims fails the court determined that the bad faith claim also necessarily fails breach that that's not extra contractual it's right in the contract the damages are extra contractual the judge carnes because everybody agrees that the policy limits recovery for business interruption and extra expenses to thirteen months they're trying to use the alleged breach of the notice provision as a way to get forty months of damages so they're trying to get an extra approximately two and a half three years of damages out of the policy when we all agreed that without within thirty days the district court found that as a matter of law due to a failure to respond to one of the statement undisputed fact that the coverage decision was made on march th two thousand and eleven and based on that that would be eleven days outside of the i'm sorry can you hear me now yes ma'am this is ten months before appraisal was ever demanded we're we're not talking at this point about what are the damages that flow from the storm damage to the roof what we're talking is what penalty should be imposed on zurich for delaying eleven extra days in rendering its coverage decision that doesn't have anything to do with how much is the cost to fix the building it has to do with what penalty over and above what owed for policy because the courts have bred into each policy a duty of good faith and fair dealing in the contract but the penalty that is imposed on a bad faith claim is extra contractual it's not the money not about ending that i would say and i think they're going to have an uphill climb on this if we do reverse but my understanding is they're saying that your delay in notifying them which they think is longer than eleven days but says that your delay actually contributed to the delay in the uprising a process which contributed then to running and other things happening so i think they're not saying it's just bad but that they suffer damages which once again might be a heavy lift for them if we remanded this but but you agree that it's in the contract so they have a right to sue but you being necessarily before you could have the deciding the amount of damages but i found the light notification you have to go through the appraisal process why was my thinking on this wrong your honor the reason we disagree with you on that point is because the damage whatever it was to the property was done on march th two thousand and eleven which is the date that the district court said as a matter of law is the day that the coverage incision was made there wasn't even an appraisal for ten more months after that and the damages that were set by the appraisal process were how much does it cost to fix the billing and how much money did your business lose while the building was being fixed they may no determination as to whether or not those damages were exacerbated by this delay and they also made no determination as to whether or not a penalty should be imposed it's completely but i made them made the case finding and again they have plenty of have an uphill battle  the battle is that we're going to x number of months we had more delight then we should have because you delay you delight in your notification and the price or decide exactly what you need to know for damages they decided per month then down the road years down the road fall a nd lawsuit based on the a prized coverage law that what you're only what we're saying your honor because it's two completely separate claims the st claim was right at the time that made the coverage decision and i understand they're taking the position that it was later in two thousand and eleven but everybody agrees that a coverage decision was made months in advance of an appraisal demand and so whatever damage there was for a delay had already occurred at that point because once the coverage decision was made we weren't dealing with that anymore so what we were dealing with at that point was how do we were mediate the property what point cost or mediate the property so any claim for damage by virtue of that delay became right on the day the coverage decision was made these other claims that they're bringing now didn't become ripe until the last couple of years because they're arguing that the appraisal award was not satisfied so these are two completely and our opinion you're comparing apples to oranges whatever the penalty or damage was an allegedly delayed coverage decision has no bearing on whether or not the appraisal was paid i understand the council wants to use the appraisal award as a measure of damages for what they should be awarded extra contractually for this delay but that's not a one to process that's their goal is to convince a jury one day that that is the proper measure of damages but there's nothing in the policy that says and if we fail to provide you with a coverage decision within thirty days then you get x y and z that's just their argument but that's an argument that may be a dad loser but it's an argument and it's an argument that if it's not a dead loser will be informed about what the appraiser would be the last per month for business law right no one was even talking about appraisal we had started appraisal no one had asked for appraisal so why is it then something that wasn't even requested until ten months later and then i believe everybody agrees is not directly related to whether or not there was damage from this alleged for those damages that flow from the need to repair the property those damages are being set in the appraisal process and they have to have the award but here it's a completely separate inquiry the inquiry here is is the damage worse because of this delay and that is just not an issue that was before the appraisal panel and it has nothing to do with the appraisal work and there's a case thorton versus georgia farm bureau that is a georgia supreme court case and it's admittedly not a case about appraisal but it is a case about tolling and what the court the georgia supreme court said there is that tolling only applies in the suit limitations provisions contained in a insurance policy if something is there are some necessary occurrence to fix the measure of damages and that applies in our mind that applies here nothing about the appraisal process fix the damages for the alleged delay and the time to provide a coverage decision it's an extra contractual penalty that a court may or may not impose if they got the merits of it got to the merits of it but nothing about the appraisal process definitively fixes those damages it would be up to that fact finder to determine what eleven it was reported again initially opened under a new claim number and coverage was accepted on site when they went out and found new damage at that point during immediately started making payments on the claim and there's no allegation here that they didn't immediately start making payments on the claim once coverage with except that the issue was that on the disagreed with the amount that there is a great pay and at that point because they couldn't reach an agreement on how much money was owed to remediate property inspected the property the st and nd time and he indicated that when he went out inspected the property for the nd time in september two thousand and eleven that the condition of the roof had changed and at that point he did see storm damage and on the spot  nine even if it was required to be pled pled this court has said and associated contractors versus martin e b then it can be amended that if it can be amended by raising the issue in a motion for summary judgment as to the nd point we admittedly did bring this issue up in the summary judgment hearing and judge self after hearing the argument instructed all parties to brief the issue he made the decision that he wanted to brief because he thought it was integral to his decision and he requested summary judgment to address that issue so it's our position that this was done with the express leave of the court and therefore we were not barred from bringing this argument when we did but you talk about  calling it versions of the document this was a situation where everybody signed the award electronically so depending on whose e mail you pulled it on you may have two signatures on it you may have three signatures on it but we all agree that ultimately the umpire and both appraiser signed this document that is not disputed on all versions again whether it's signed by two people or three people it lists in our c v of approximately eight hundred and eighty six thousand dollars and in a c v of approximately eight hundred and four thousand dollars at the very bottom of that document there is a table that breaks out mold remediation and code upgrades now mr cole says he thought that that was in addition to the r c v n a c v listed at the top mr was it and who was the one who actually drafted the award as the umpire has disagreed with that and mr chorley who was there exxon pyar also disagreed with that but even just looking at the face of the document it doesn't make sense in our c v if the cost to replace a property by definition why would you have a cost to replace the property listed next to our c v that did include code upgrades or motor mediation obviously those are necessary can pump components of replacing a property but even if you do believe that that cover page is a we have the backup documentation for how they got to those numbers again mr watson was the umpire he's the one who drafted the estimate that the a word with based on given an affidavit where he provided his estimate which is one hundred and fourteen pages long item totals including motor mediation and code upgrades their label for us and we reach the numbers that are at the top of the page the eight hundred and eighty six thousand dollars number and the eight hundred and four thousand dollars number now i understand mr cole who's on these appraiser says well that's not what i understood but what's interesting about that is if you look at mr coles deposition testimony on page seventy two dollars he's the one that actually produced dessert not estimate he produced it to us at his deposition and he said yeah this one that wrote the award and mr wasn't the one that wrote the estimate this wasn't a baseball arbitration situation where the two appraiser submitted numbers and mr watson had to pick one he was free to use his own discretion and in fact he did use his own discretion and he came up with a certain number and everybody signed on to it and so i understand that he was ultimately ultimately step down but the award has been upheld a finding by the georgia court of appeals and it's in my opinion it's not ambiguous on the face at and the amount have been fully paid but then in a footnote he said and in the alternative if the court must look to prole evidence it is satisfied that this one hundred and fourteen page line item estimate where the numbers correspond is sufficient evidence of the not delayed than forty months of walls profit and additional expense we can take that even though the policy provides for a thirteen month cap that