thank you your honor may it please the court and with the court's permission i would like to please reserve three minutes for rebuttal this is a diversity jurisdiction case arising under my own ten a substance of law it's our position that the district  allowed the claims to proceed to the jury under a mistake of law and the standard of review is that the district court erred by allowing plaintiffs contrary to montana law to maintain a claim prepared state of emotional distress damages arising out of damage to personal property in doing so the district court ruled that such damages are available despite there not being a single case where the montana supreme court has allowed parasitic emotional distress images of damaged personal property in doing so the district court expanded montana toward recovery to a place that no other jurisdiction has gone before and in doing so the district court nullified longstanding montana case law establishing a heightened standard for bringing an emotional distress claim where such damages are not otherwise recoverable  except that the j consent case is a bad faith insurance case it is a separate claim and so sako establishes the heightened standard for situations where the montana supreme court has not otherwise allowed claims for emotional distress and what the court the district court did is looked at a few of so called exceptions and made a logical error known as a hasty generalization that's the assumption because the montana well your honor i think if you walk through the types of claims where the montana supreme court has specifically allowed them they are very specifically the types of claims where emotional distress damages have always been allowed in to for example the parasitic claims arise where you have personal injury claims involving a personal a physical injury they arise in discrimination claims such as vortex fishing systems insurance sad pay claims and damage to real property but the months where you have evidence of loss of use and enjoyment of land but the montana supreme court has never allowed personal injury emotional distress claims arising out of damage to personal property and the problem with making that job and i can't speak for the white claim but i think fraud is again a different sort of claim involving a different standard of care and a different element of damages then damage to personal property such as this case and as is and that the taliban are briefed that all of those so called sections are simply long standing damages that have long been available for certain types of tort in both montana and otherwise and the other side of it is if in fact all true no matter what tort is a law is claimed can bring a parasitic claim for person for most of the stress damages cannot be separated from the nature of the claim that is being made in ga consent there are a number of ports where they have always been allowed emotional distress months hand supreme court has never said that emotion distress claims are allowed as parasitic to all one and they never ever allow there's not been a single case cited by the plaintiffs or in any of the briefing or the district court where they have allowed emotional distress claims or writings and out of damage to personal property which is what we have here and so and then the other side of that is if in fact this court were to say well all torts you can have these p sako no meaning whatsoever because under because obviously you need to have a tort for the underlying standalone claim and so this idea that a plaintiff can either choose the heightened standard was to address the major policy issues that limit claims for emotional distress that is a floodgate of litigation and i live it is a liability for defendants and that's why the law in montana is the law intervene with a claim promotional strap only when the distress inflicted is so severe that no reasonable person can be expected to endure s and under the plaintiff's argument and this of course rule the claimant who clearly not the law not hannah if it is recorded correct and the childress is simply pick their standard of care every property claim in the state of montana every fender bender every broken near every month motor vehicle on clear which is why a certification wouldn't be correct because it would be accurate because i do believe that the montana supreme court has demonstrated in three ways that the law is clear st of all there is longstanding is law that does not allow emotional distress in every claim that's the day case that we cite in our briefing and while it is an old case it predates soc so stablish is what the standard is for the state of montana when you have a claim for emotional distress and a tort does not otherwise allowing emotional distress damages such as discrimination bad pay fraud loss of use of property and search the fact that there is not a single case law in montana or any other jurisdiction where these type of damages have been allowed in montana supreme court has never allowed emotional distress damages as a result of damage to personal property and in the briefing you cannot find a single case cited to montana or for that matter any other jurisdiction where that allowed because the montana supreme court has consistently limited emotional distress  certain types of tort other claims can only be made under the soco standards so i don't believe there is a need for a certification given given that must have a law is actually for you know and it's why would that be different then why would a real property case be different from a personal property case well it's actually longstanding established jurisprudence and not unrelated to the case we just heard the idea that holmes review who talks about the idea we provide separate protections to loss of use of real property than we do for real for loss of use of personal pride really and that's exactly if you go to the maloney case which is the case the montana supreme court did allow personal emotional distress damages for damage to real property they walk through that exact analysis how this is personal identity property which is what we link in throughout the united states and then recognize loss of use and enjoyment as a damage claim and it should be noted that loss of use and enjoyment property which is the emotional distress a federal district judge here is a montero lawyer with consider own experience we with professor moore that an interpretation of local law by federal judges experience there and should be given great weight  identity probably someone's home as it's being and that's that's what makes it different even if there was a general rule was there's not the personal property is don't give rise to emotional distress damages as a general n the safety associated with your home and the risk for a period of time these funds for homes because of this tarp and so consequently it is very similar to the facts and all in a lost somewhere but are and going through seltzer and well rang and diggers and finally white you have a whole decade of case law indicating that emotional distress damages are generally available in  that someone did something to you without violating any of your other rights only object they had in their conduct was to hurt you emotionally so in this case you have negligence and you can share personal property and something could arise it is this case to make these other documents important we put those on the maze is you know something arises that you didn't expect and you don't have it on your mater's you can't use it at all so you need to have more on the other side of the documents you intend to use for exhibits and you need to let them know what you made something comes up but you need to be able to give the other side and the district court judge what they're going to  about and then treated at the white cape that you're on or talk about that with a construction project where there was damage to real property and they haue had to be taken down and put back again i've got so i'm how do you respond to the point the what the emotional damages attached to was the loss of certain items that were sort of intimately connected with their with their real estate that is with their home in idaho namely that their address is an id and things like that if we were just talking about the car i think your point might be well taken but when we've got things that are sort of intimately connected and wrapped up with people's lives that that goes that goes beyond just mere personal that some of that is connected to real estate well there is a a distant connection to the real state of the truth is the loss of youth that they heard was not as a result of damage to the real estate it was a result of their emotional response to the fact that they had had personal property taken and i think that it's a that is a different situation and a situation that montana law contemplates very specifically in soco if in fact you have a strong emotional response to some sort of tort regarding personal property you can make that claim in montana you simply have to make the claim under the high standards established in soco and that's where that that comes in into play is that they and they certainly they apply that claim and maintain that claim and i have to simply reject  the argument that somehow the mit claims exist when there is no other duty clearly negligence is a part and parcel of that tort of the fact of claims i also wanted to mention on the cross examination the will call may fall list as judge call and ask there was no clarification that that in the not apply to cross examination on the contrary it clearly was meant as if he should have been an impeachment list if those claims would be made at trial and with that your honor i would ask that that judgment be baked hated every man did said that there was an entry had judgment only on the property damage  ye hear ye all persons having had business with the honorable the united states court of appeals for the th circuit will now depart for this court for the session now stand