and its insurance company the policy holder in this matter is hamilton properties the insurance company is a i c american insurance company the matter derives from a hail storm that occurred around the dallas metro area in july on july eighth of two thousand and nine now briefly by way of background if i may this was a property that was bought by hamilton properties it's a hotel and it is it was own as of two thousand and six that the policy or the property over operated as a hotel until the beginning of two thousand and nine at which time it was shut down but there was a caretaker that maintain the property his name is thomas kaufman he was a key in this matter he stayed within the property during the time that the hailstorm took place after the hailstorm took place he reported that there was damage frankly mr hamilton who is the owner of him and properties the plaintiff in this case wasn't aware of the extent of the problem he ended up reporting it february of two thousand and eleven and then it was denied after he had a an expert involved on his end at the end of two thousand and eleven now the issues in this case for the court are two fold as to the breach of contract number one the claim made by the defendant in this case is what was a basis for the summary judgment motion that was granted by judge boyle in dallas federal court a couple years back and what the first issue was was whether there could be a proper segregation of damages by hamilton properties would they have the ability to show that there was certain damage any modicum of damage caused by the storm that took place on july eighth two thousand and nine now the second issue that comes up is whether or not because of the amount of time that transpired between the storm date which was seven eight of two thousand and nine and the actual reporting date which was early two thousand and eleven if that resulted in prejudiced under the policy now there's also there were extra contractual claims made those had been disposed of by the court however those were generally linked to the reasoning of judge boyle that because there was no breach of contract there w not be a driven of opportunity to show bad faith our position in this case your honour's is that because there was a material issue of fact there was evidence that would shut that there was chris wooten who was also a representative of a i c they both indicated that they were able to do exactly what they would normally do throughout their process and that they had not claimed that there was any prejudice they said what they had claimed was there was no damage to the specific wording your honour's was that i asked and it's in the record what were you claiming that there was prejudice the answer was no because there was no damage meaning that language is included with in judge wells order here is why the plaintiffs feel that that was an incorrect ruling you have two different individuals or others who are testifying on behalf of the american insurance company the first one is mr paul blanchard who is a large loss regional general adjuster  he talked about the fact that a date of reporting it didn't essentially kill every cat in the alley so to speak it would look at prejudice he said that in the record on our way eight sixty three it at lines five through eight he also continued to say that they were able to do exactly what was needed this is our way in the record eight sixty seven through eight seventy two and specifically answering in the affirmative that your honors on page eight seventy two of the record lines nine  now in this matter they claim that there was no damage there has been several damages from the plaintiff in this case specifically i had referenced earlier your honour's mr tom kaufman he was an individual who stayed there was a caretaker frankly to prevent things like vandalism etc to maintain the property or to give notice if there's an issue of it which he did in this case during the times after it ceased functioning as a actual hotel now the hotel remain but it wasn't functioning as a hotel he testified that during the time that he was there which included months prior to the actual july eighth two thousand and nine storm he had had opportunities periodically and inconsistently to be able to see not just the different forms to determine if there's damage but he also specifically looked at the twelfth for now that's important because i would submit to this court that because you have a twelve story building here the twelfth floor it would be the first floor to be immediately affected by damage that would be coming through from the roof now he testified as to having showing this damage to the tiles he testified that there was damage the additional part of the structure i would direct the court to the record page eight ninety four lines fo through eighteen where he talked about new drippings in area that previously didn't have those he also specifically talked about the damage to the ceiling tile in the record page eight ninety five of sixteen line sixteen through twenty three now what's most important we think about this  is that not only did they specify damage but he drew a distinction between what was there now and what was there previously which was nothing and he's be made that distinction on eight ninety six in the record  understand if if the people that looked at the hall and chris implants or didn't and said there weren't damages but there is now some damage and people think that there is some damage or then speak to that issue when you talk about prejudice they were too specific matters talking about the purpose of what is meant by prejudice and it's the ability it doesn't want to affect the ability to do a proper investigation judge if i may the  case which is one eighty five south west search six of seven and that's actually cited in the record on page eighteen eighteen thirty one of the record that says that timely notice purpose is to allow for a proper investigation your honor this went beyond just who is a large loss adjuster on this your honor we tackled that very issue that the court pointed out with its concern as to why couldn't that have changed why would they be prejudiced specifically they talked about what they would do in the event that there was an investigation to look at the property consider all the surrounding activities and people's perspectives etc that you'd want to do from a clean sailing perspective they want to talk to the individuals they want to evaluate the property they want to do a firsthand inspection consider the areas that were damaged cetera specifically specifically mr blanchard's would ask if he was able to do all that was needed and on page eight seventy two of the record lines nine through eleven he specifically said that yes they were and he also said that  could ultimately have to establish that there were damages at the time of two thousand knots here not relying on their first assessment that there wasn't damaged to begin with but so you have to look at it after the fact and as a district court reason there is some evidence that the damage that is now present was over a period of time so how do we know it was not in two thousand and ten the standard your honor was that whether we could show that there was damage that was specific attributes specifically attributable to storm versus something that would be falling within language of exclusion like wear and tear or met or mechanical damage specifically your honor that has been accomplished in that this case mr tom shayler who is the expert for the plaintiff in this case on an engineering standpoint was able to look at the roof and when he did he found that there was damage to the camps which are the areas that slope in between the surface of the roof and the parapet walls which are the abbreviated walls that surround the same structure he was able to find out and it correlated down below with what was seen right after the storm by mr kaufman so what you have here is you have an engineer who went up there talked to everybody met with mr kaufman who was the eyewitness in the in the on the twelfth floor after this occurred and was able to say yes that's damage that relates to it but it's more than that because look at talk to mr coffey live in a timely manner mr coffey lin and if you can if you're relying on that i guess that matter well there are two things going on here number one mr koppel when he was deposed it was years after indeed however there was testimony in this case that after he had seen this he had talked to the individual who was i believe actually far hired which was on the court's record page eighty six lines twenty three twenty two and he actually explained the same thing to her as he did in the record during her during the deposition so the fact of the matter is the perspective hadn't changed and your honour's i would submit it was a very vivid perspective this was an individual who talked about not only is he the the only one there at that time which would be a bit daunting but also he talked about the sound of the hail he talked about seeing the hail the size of it when he saw it on the balconies because these do have balconies and then he talked about immediately thereafter walking to the twelfth floor and seeing things that hadn't existed before those were the recounts that he gave them is certainly it's enhanced as time goes on absolutely but in this case they have said that they were claiming that and also there was evidence to show that they were allowed to do the same inquiries the same investigation they would be able to i mean indeed mr putin himself said yes i'm saying as the individual here you know who is under oath at the time he said that there was no prejudice being claim and he also said something else that i should have remarked on the fore on pages nine twenty six lines one through six he said any disclaimer of coverage would be through me i asked if they were making that claim he said no it wasn't a matter of were prejudiced at all it's a matter of we went out there and then we didn't find any damage now this is a troubling position position judge all right for the following reason originally they said there's no damage and then what happens is this things morph as we have evidence that there was damage they reversed feel and they make the statement that now it is a situation where ok there may have been damage but it would have been before that falls in line with the evidence from the expert from mr schindler and i and i will i submit to you and the court correctly found that there had been testimony that yes when we don't have a brand new building your honour's when we don't have a brand new building in to help clean the next day there's always going to be wear and tear just like frankly i' submit that there's wear and tear on me after the years but the fact of the matter is this had evidence that could distinguish it and one of the things your honor that i think shouldn't shouldn't be overlooked the expert for the defendant in this case a gentleman named brett lock consistent with the hail i'd like to point that out for the record that was on pages nine thirty four night you have an expert to state it with damages that could have been caused by things other than didn't you have an expert who said that yes there  will be an expert in the case for us there is an expert in the case judge graves that said there is wear and tear to a building of course it's not a brand new building but there's also discernible evidence to show that there is damage from  it and it was on the top to the parapet saying you have a problem of trying to distinguish damage which was caused by hail from all the other damage of wear and tear in a failure to maintain maybe and all those other things compounded by the fact that it was you who failed to report it for some nineteen months if i may address that judge graves in every single case and i've just tried one last week there's going to be an element of distinguishing damages between what previously existed and what's at issue because of the loss of hand that is a matter of a jury without a trial hearing evidence on that making that determination the question isn't it an overview of the summary judgment before the son of the court the question is was there a scintilla of evidence that we could point to something saying ok even if there is wear and tear there is something here namely issues with the parapet as conceded by the defendant fact here is there is a material issue showing competing positions by experts one of which being that there was damage from that hailstorm daughter that with that i see that i have three seconds left it i deserve five minutes if i in prejudice as a result of there not being proper notice that relieves the insurance company from any obligation of the contract and didn't also the plaintiffs and the plants in this case burn to first of all notice in this case was not prompt as a matter of law the insured tries to make an issue of well weeks when you did it earlier than what the defendant said but still as the court in lower court held nineteen months as a matter argues it is clear he tries to make a fact issue from saying well the adjuster testified that these are all the steps generally that he would conduct an investigation and he was able to conduct all those steps but i would submit as i believe the district court held it's not the steps themselves that matter is the information available along that way both quantity and quality and i believe that the seven judgment evidence was clear that both were lacking the witnesses that would have been available to determine what the extent of damage was witnesses are these what  knowledge and been able to be interviewed but that became impossible for a i c to do because those folks moved away before the claim was reported they weren't even disclosed that they were going existed until we were well into litigation and at that point time we inquired of contact information for those individuals we were told that they had none so the critical witnesses disappeared and were left only with the years after the fact  kaufman that was not he was not disclosed during the time they even the claim was being investigated it was not until we were in litigation that we received what mr coffey lends years after the fact regulation recollection of it was why isn't there a fact issue on the prejudice because of the statements the statements are really bad for you by mr blanchard and mr one of that's unusual to have that one of these cases to i mean we have a lot of these chemicals and don't you think those are uniquely bad i would agree that they're unique to the case but but if there are let me explain what mr blanchard said was he was able to go through all the steps but your own i think if we look back to the original it's not a letter before there was litigation and what they said i think has instructive on how the proper and context for this testimony when the cla was denied in that letter and from february sixteenth two thousand and twelve they first noted that there was an end to writing inspection one thousand days after they claim date of last where the roof was noted to being good condition they noted that there were wear and tear issues and that there were if it consultant non league had not found hail damage when inspecting and during the climb but he also noted this patch that was on the roof that was a with directly above the area or area with the greatest interior damage he have the letter also noted that there were hail events that could have caused the  damage any hail damage being asserted by the plaintiff that occurred both before and after this very short window of coverage and literally there is seventy seven months in a few days worth of coverage on this with the damage would have had to have occurred in again two and a half years before the claim is are being examined and they say quote the late reporting of this last severely prejudiced our investigation that that was the company's position all along mr billings are saying these are the steps that i would go through is not an mission that he was able to gain the type of information necessary to reach that conclusion in his letter to the insured says that he was not able to reach that conclusion mr wooten's statement that he wasn't claiming prejudice because he thinks there's no damage and quite frankly your honor makes logical sense because they're roofing consultant that went out found no hail damage wrote it would but if there was it would be saying there is just i have regardless of whether the evidence is going to be overwhelming at trial that there really was prejudice isn't there some evidence in the record that they were that your client wasn't prejudiced some evidence i would say there's not more than a scintilla because the the i think you have to take those statements very out of context and i think that they do not standing alone and they would have to create a fact issue i don't believe the evidence in the record is such that a jury wouldn't be able to causation much of what the plaintiff points to would fall and or what we say more often in the scientific world correlation is not causation and so the fact that mr possum says well i started noticing leaking right after does not it is not really the evidence that they need what they need is their expert to be able to say this damage was caused by this hail storm and and not me thing else this is the cost to repair the damage from his house or they don't have that mr hands i care does point to add things that his expert pointed out that he believes were caused by that hail storm but in the record also is the same expert admitting that given the evidence of additional hail storms which he didn't investigate and didn't consider that he can't rule those out as the cause he also admitted that this large patch that again was noted by the company originally when they inspected for the claim and then  was a potential source that he could not rule out that coupled with the same experts testimony that the timing of the damage that mr kaufman says years after the fact that he observed just within days that that would suggest that it's unlikely that storm and is likely a prior storm and that creates the obligation in this insured to segregate the damages which was not done one thing that i believe always gets lost in these cases is we focus very much on can the insured show coverage but the real question is breach of contract this insurer has filed a claim for breach of contract thus they must show that there was not just a loss but a payable loss that means a loss exceeding the policy is deductible there is no evidence of that and then finally as to the question of the extra contractual damages i hear plans to be saying that it matters only whether they show a breach of contract or not and because they believe they show a breach of contract and i will say that that they can go on to their extra contractual claims when their br suggests that they show an extreme conduct i believe there's no evidence of that in the record but the other thing fatal to any extra contractual claim regardless of whether there's a breach of contract or not is an independent injury which the trial court found there was no evidence  so i believe regardless of whether they created a fact issue on their breach of contract their extra contractual claims would still fail for lack of an injury to support those is the wors the independent injury well one your honor i don't know that there is evidence of the worsening of the roof post the time that the claim was adjusted the evidence on the record i believe is that there was a worsening of the roof between the time that the damage allegedly occurred and when the claim was reported and finally investigated which of course i believe is additional evidence of prejudice to the insurer that clearly their own expert admitted we can't know what the damage looked like at that point in time and if there if there was evidence in the record that there was a worsening of the that would be the top of evidence that would support extra contractional claim right i believe if the plaintiff could show causation on that point that because the claim was not paid that caused it to to get worse i believe in those situations and i am waiting for case law to actually directly address that but i believe in a sure would have to show that because the plane was denied they were unable to make any repairs i think in this case and i can't recall if it's in the summary judgment record because the issue really wasn't pushed the that direction but i will tell you that  hamilton's testimony was consistently that they were doing nothing with this hotel because it was an operational and far frankly they knew that they were going to get the thing and remodel it and so they were not maintaining in fact i know that testimony is in the record that they were doing that thing to maintain the building because they were planning on an entire revamp they want to pardon anything essentially we're going to spend any money on that because it was for all intents and purposes vacant mr c other individuals that lived there for a while and did so rent free and in order that they could keep a grants out of the building which was a problem as this property is on the edge of downtown dallas hundred to claim back right if the court concluded that there was a fact issue both on the concurrent causation question and on the notice predator's question than yes your honor the rest of my fridge enough to send back only that one right misrepresentation claims were not appealed and the statutory bad faith claims under five forty one and i believe that the claim in this one and possibly common law that those would all be ones that would go to the argument i was making about there is no independent injury resulting from those and so therefore those claims can survive and that would be the basis for those thank you if the court has no other questions for me than i'll give you secret one issue that we didn't get to address during the first fifteen minutes segment was the independent facts in regard to the bad faith claims now the court had just pointed out in speaking with opposing counsel that there were some matters that were not appealed such as few share duty and i believe some some of the fraud base claims however in addition to the five forty two claim the late payment matters there were also independent facts submitted go beyond the actual breach of contract and speak to things well beyond issues of whether or not there was prejudice and issues of whether or not concurrent quotations to feed and specifically that was in regard to the testimony that had talking to a gentleman named mr weissman who had been out there regionally he had came out and done it in which he believed that there was minimal to no damage or the the roof was in good condition this was back in zero nine and then when they did their inspection later he went back and he asked him to come back out there to find the same things we've submitted that because that's not only in the testimony as explored on under direct examination but also you have correspondents your honor and this is actually at page nine thirty of the record paragraph two in which he's asking him can you please come back out and frankly find that it's still in good quality again it's in good condition that is an attempt to our position is an attempt to bolster original conclusions even after they have testimony to the contrary and and i would also submit judge ally in regard to your question about independent damage i believe it was right on point the idea that you can have continuing damages on the wear and tear side or in worsening of the covered areas that we've talked about of mr cheney look mistress not testified to that actually had been proved up by the defendant themselves and then the time period at which it does it it can't just say it and it exists now it has to be edited at the point after which it was adjusted and not paid i understand and i think in just to make sure that that i'm i'm dialing in on this correctly judge all right the court's asking me after they've already made their determination what additional damages were there that would be unique to the time period subsequent to that exactly and is there evidence in the record of that and i by what i said before i believe there is because i believe it's going to be the identical testimony to talk about the worsening after it happened ok do you agree that national union far insurance versus puget plastics corporation correctly deals with allocate damages between those that resulted from covered perils and those that did not is fatal to an insured parties claim it's quoting national union fire insurance  having specific testimony from our experts that actually show exactly what damage had been caused by the storm on seven eight of two thousand and nine and that's versus the wear and tear and the additional issues that were part of the exclusion of the policy language in part of the ban or being campaigned upon by the defense in this case ok so you think the district course just wrong then and we all can be wrong that you don't have evidence allocating the actually had it in his report and for the courts records that actually report was on seventeen o five and seventeen zero nine and ten of the actual court records and with that i see that i'm out of time if the court has any for