morning ladies and gentleman i understand that in the cases to be argued for to date counsel is delayed in the first case on our calendar versus danny international so we're going to put that at the end of the calendar and we'll proceed in order otherwise evanston insurance versus kramer and associates verdict in its favor on the basis of the statute of limitations this amounts to reversible error because the record was sufficient to support the jury's finding that the statute was told a conspicuously fact an determination given that the jury found william kramer and associates special relationship requiring a to inform sex of the existence of a mortgage on the condominium complex your position is that the that the purpose for which that the relationship in which the defendant had been hired to to find to explore everything with respect to the property and to make sure that they were no interest continued after even after the insurance company had paid and the and and kramer cramer continued to advise  client of anything that happened such as its having received an inquiry about the payment even before the problem arose and after the problem arose it went back to searching it files it told the defendant again incorrectly that there was no mortgage it build the plane to for its time the plaintiff paid for each time it called the plaintiff our client and you saying all that that the relationship continued was a right that's our position and it recognized explicitly recognized an obligation in the deposition of the defendant testified that it had an existence so what's the the duty remaining in existence the district court offered instructions on that duty which were legally correct and have not been up here all cancer my question what does  the duty or rises out of the relationship being and what's the duty the duty is to act as a proper adjuster which is to provide information to gather information to evanston or essex when the subpoena questions came to provide additional information on a duty of care it is a duty of care because it doesn't connecticut i mean is it at least the duty of care but it doesn't connecticut law define the duty as a fiduciary it does absolutely and the jury was properly instructed and let me just say i made to insert something with back to judge reggie question because a judge reggie quoting from the case of the flannery spoke about a breach of a duty and as i understand it there are two there are two different branches that can sustain the to one is a new episode of misconduct which is what judge reggie was quoting about the breach of a duty the other is simply the continuation of the duty so the  phrase that the particular phrase is that if i enter without or without a quotation from the opinion it sounded to me like it was a quotation from the opinion that it's talking about that particular sentence is talking about there must be a breach of the duty that's the second branch of an episode of misconduct which is a different thing from simply the continuation of the relationship right that's absolutely true and six was abrogated to prove either of those and the jury found it had and there is evidence in the record on both is long as that to do serious relationship was continuing then that gives rise to the  i'm going duty of care and in this case the jury could properly find it continued based upon the testimony of both representatives from kramer and from essex that they had an ongoing relationship and that they were continuing to work together and in fact essex hired an attorney to represent the kramer representative during the depositions kramer continued to now i'm going to ask to go back to my question because it's not one and i have a series to ask you to to make sure i understand your position on this the language i quoted from flannery was that continuing course of conduct requires evidence of the breach in the duty that remained in existence after commission of the original related there that duty must not have terminated prior to commencement of the period then is judge live out pointed out the court said where we have upheld a finding that a duty continued there had been evidence of either a special relationship giving rise to such a continuing duty or some later wrongful conduct my concern to get right to the bottom line is that what you're saying here is that the adjuster had basically a continuing duty  had made a statement about what the other mortgages for once it had done an adjustment and i didn't understand that to come within a year in my in my misunderstanding because that's the problem i'm having what's the continuing duty here because you're basically saying that having not not gotten it right at the start and having let you pay out they now have it when they're when that gets discovered they have a duty to ind omission disclose my question to you is is it because they had a continuing relationship that they are breach of the duty before you pay remains in existence or is there some continuing duty that they have that was was breached after you paid i'm not sure i fully understand i'm not sure i understand what your what your theory of a continuing duty is and that's why i want you to help me out let me let me try your honor under the special relationship as long as that special relationship continued with respect to the same general event no to such a continuing duty a special relationship between the parties giving rise to such a continuing duty correct so as long as that a relationship was continuing in there are any number of cases that make this point then that duty arises out of the relationship so the jury was asked to consider did this relationship continue and the jury found that it did what it was not like flannery because in flannery there was a written contract with a specific terminations date and also in flannery the harm the injury was complete this is like those other cases which were cited discussed in our brief where it's a sort of cumulative harm that's i'm going or there's nothing connecticut really answers the not disagree with all right when we hear of a i just took off or i'm i wonder whether you would think this was an appropriate answer supplemental answer to the question judge reggie asked which was that before the insurance company paid out the defendant had a duty to investigate thoroughly to determine to find and discover and advise the insurance company of all possible financial interests with respect to the property that might affect the insurance company's duties to to pay who it should pay how much it should pay so forth how it should allocate them and so forth and that duty and that duty continued although it seemed at the time to have to have to no longer be relevant after the insurance company paid the  the defendant received an inquiry how did you make your payment it recognize its obligation to tell my client right away about this about anything it ripened into a claim by the mortgage either that it had not been respected at that point the duty was as before to test whether to see is this a valid claim is there really a mortgage is there some deficiency in the claim by that by the claimed mortgagee to continue to do the same things that would have been obligated to do before and it at first advised the insurance company that there was no mortgage once again repeating the same error as before which might might arguably satisfy the new harm the new the new breach but regardless of whether there was a new breach regardless of that the relationship under which the defendant was obligated to search thoroughly the matter of the damaged property and see who had an interest that needed to be respected continued  does it i would agree absolutely your honor if after you paid out you would learn that they had misinformed you what would you have been in a position to you if after they had paid out certainly at that point the i'm going litigation and disputes and and efforts to deal with the case would have been handled differently forward indefinitely certainly is until they their activity arising out of this it just meant in loss was completed and that was not the case until the settlement at the very end thank you you thank  please the court richard simpson for the defendant kramer i want to go directly to this issue of duty and the continuing duty that judge of all asked about and judge roger that the argument that was suggested in the colloquy with counsel that there's a continuing duty here to look for the mortgage is directly contrary to connecticut law it's not something it's on settle the law in connecticut on that is clear if you look at examples take for example a doctor who misdiagnosis  patient the doctor misses the condition that doctor has no continuing duty to advise the patient of the condition unless one of two things the doctor continues to treat or i would make the the the argument i think it's clear that they hear the argument for a continuing duty is a lower this was a commercial transaction and if you look at what was the project completed if you go to that issue was the engagement completed and though in your honor flannery is the closest cases as joshi indicated but is the project completed william kramer was hired to adjust the loss they adjusted the loss they advise their them for your actions you were answering questions and providing material spout something why isn't it fair to say that that revived the duty to have done that w due care because your honor and i think that's a critical point the adjustment work was done in two thousand and seven there was one follow up question as your honor indicated that two thousand were talking about whether a relationship then continued that gave rise to that duty having been of care in that regard having kin you as counsel just said this whole their whole litigation past you may have been quite different if they knew that they were just or had missed a mortgage and you were answering questions for them in this process and not disclosing that yes you had  poor in all of these inquiries who should have the information but for your negligence and you're not disclosing it your honor that the files closed and in two thousand and nine a subpoena comes in there's an client said that we had an obligation to advise our client of any any developments and build to build the insurance company for its time in the work for appearing in the subpoena they were not being your client was not acting as an independent entity and not in a not in a at a client relationship with the insurance company it was regarding it's in your express acknowledged an obligation to let them know about you you're talking about yes the an obligation to ensure the subpoena i'm not talking about that i'm talking about your clients acknowledgement of an obligation to advise the insurance company of any that there was a mistake there's an obligation to tell the client that's true for a lawyer it's true for an accountant to let me ask you this supposing that the adjuster had discovered when this problem came up supposing that the adjuster came up  and discovered that the claimed mortgage interest was invalid for some reason that the mortgage that mortgage had been satisfied or a court had ruled in a another matter that that mortgagee no longer had the right to this or something or other that was that that would that would help the the insurer its client to defend against this claim wouldn't it have been the obligation as recognized explicitly to tell him to pass this beneficial information on to to the insurance company if you have actual knowledge that's what the connecticut cases said and there isn't if you have something short of actual knowledge well there's strong indication here that this is satisfied but i have to i would have to go further to confirm it so i'm not going to tell them i'm not going to tell them because they don't have actual knowledge i have to wrong indication newhouse actual knowledge is the key the point though is to come back to duty because there was no duty on the part of kramer to be looking for more information about his adjustment and when it got the subpoena it was compensated for its time in responding for the subpoena if it didn't do that properly and your view is that that is a duty to just response of the subpoena and not any duty to the insurance company well as you know no is it due to the insurance company but what you describe that duty to exercise due care and respond to the subpoena or not is not the key this is what judge shay said is the key it is not a continuation of the adjustment and there's an obligation to do it properly but assume that it may we don't think it's a related wrongful act but assume that it is it was in two thousand and nine and so it doesn't matter because if the clock resets in two thousand and nine the statute of repose has still expired and so you can assume assume that in two thousand and nine they commit her wrongful act and assume it's related to the initial adjustment it doesn't affect the outcome as judge say said because if you restart the clock  two thousand and nine the statute her post still expires but you know that this went to a jury and the question could very well have been for the jury in it the answer that they gave was that they didn't view your duty so narrowly at the time of your of your responding to the saying worries you were you were the adjuster and they viewed your duty as one to have at least the information in your own fi e informal your decisions i mean you may not of had been under a duty to go out and conduct a newly ory but for you to give answers and to provide me impressions in your  responses that were not consistent with what was in your own finals could have been viewed by the jury is negligence and a breach of the duty to your client to answer as you are the first as well there's a duty as an issue of law for the court and the second is if we look at flattery cope of the duty here was in dispute you're disputing what you had to do i don't think there can be any reasonable dispute that both parties the adjustment was complete the money was paid out the files were closed in two thousand and seven the job was done if you look at for in flannery you had an attorney there who committed reprehensible conduct he sitting there knowing he had a conflict his client comes to him and says no reasonable person could find this in gage meant to adjust continued and if it were found here it would create a discovery rule a single can case that has generally or involves generally the these issues in the context of an inch and it's just or not they're aware of your honor i think is as judge shay said flannery is the most recent and probably the most informative the medical cases are the best analogy and you mention duty to exercise reasonable care and i would sound like it would be related sort of a b related wrongful act and the key point i think if in two thousand and nine if you treat the subpoena as exactly that there still is no if that that if that revives the statute the period only big you know begins to run again and i do want to come back in just a difference between the attorney that you gave in this one finder stood the attorney example there the turning wasn't being paid by the client that  point any further is that right ice i assume that's right and that's the problem i have here once your client is taking once you're kline is taking its clients money to participate in this in responding to the second insurers inquiries isn't there do you see for you to provide anything that you know that's material in you adjuster of what whether the duty of care in connection with adjusting the loss is the same as the duty of care to the client subsequently in responding to  other would be a good idea and i think as judge shay said the medical cases are the best analogy and if you think about it a doctor continuing to see a patient if it's not for the same condition and the doctor case of van liner also as a good illustration supportive of our position and it seems to me the court understands i know we've gone over before with respect to certification i certainly would not have a problem with that i think the case is strong for reversal here which i'd love to save my client the time and money of additional proceedings but i understand why that would make sense thank you very much