good morning everyone and welcome to the th circuit if you haven't been here before the total time for argument is on the clock if you want to reserve time for rebuttal please let me know and i will try to help remind you when you see the red light goes on that means your time is up since we have a very long calendar today i'm going to hold everyone strictly to their time the st case for argument is edward stultz the safeco insurance company of order the undisputed facts are very one sided and i want to point to page five of of the court order that's se or five and read  disputed facts section this is where i think this report is in error this is plaintiff testified in his deposition that he had several combative interactions with the safeco adjuster on the phone he testified that when he contacted the adjuster supervisor there was an attempt to try to humiliate or intimidate him and that she was not sympathetic to his complaint plaintiff's own testimony is the only evidence of these interactions and defendants dispute them defendants do not dispute these interactions there's no affidavits from either of the two adjusters and representatives from safeco that talk about any of their telephone conversations the affidavits from the safeco what i was at point significant because it goes to the manner in which the good faith that safeco is required when when they issue a policy of insurance to my client they have a duty of good faith in their disappear your bargaining position it in a position of holding the money till kind of waiting to try to figure out how the fact that maybe the person on the other and the phone call wasn't as sympathetic as possible provides a cause of action your either the money needed to be paid or it didn't need to be paid that's really what we're talking about with insurance coverage isn't well that's correct but also so how does this have anything to do with whether or not money should have been paid by the insurance company and was not because when they go to the point of of making fun of my client's clothes of saying that are you wearing hagar pants that goes in direct violation of the spirit of the contract so this whole cause of action is because your client has hurt feelings by his attire that's not the entire that is that is that a cause of action that is a cause of action really i believe it is any authority for the proposition of the insurance company honored its obligations under the contract could still have violated an obligation of good faith and fair dealing because the call representative wasn't as sympathetic as perhaps should have been on the phone well it's more than being on some but i don't understand that as a cause of action i just don't see where that comes from and so i don't see how this factual element you're pointing to makes any difference and i appreciate the question your honor but with respect to the fact that this just wasn't one telephone conversation there was multiple telephone conversations there were letters written there was information provided counsel if we were to reach the merits here i mean it seems pretty clear that the insurance company kept asking your client for detailed appraisal i mean a detailed valuation of what he lost and your client kept failing to give it to them so how could the insurance company if we reach the merits violate any contractual duty when your client continually fail to give them what appears to me to be the reasonable information they requested thank you for that question your honor it's interesting to note that in safe those motion for summary judgment they don't have the burden at trial so they have the burden of production in the burden persuasion as you know in their motion for summary judgment but they produced my client's responses to request for production of documents as part of their motion for summary judgment exhibit nineteen and show that he had money taken out of his account by the assailants but i mean things that were produced in discovery i mean is right really neither here nor there with regard to what he gave the insurance company to support his claim before he sued them well what he did give them as i'm sure you're aware was a six page letter i've read it with inventory and according to your brief he provided them with a did not have the approximate values because when i looked at the e r reference it gives me to that six page inventory so it the statement in the brief that it came with approximate values doesn't appear to be correct is there something that did provide approximate values for the items on the list there and i apologize for not for not making that reference more clearly your honor but there is a reference in the responses to request for production that do show specific values with respect to and those aren't the pages cited claim for implied governor of good faith and fair dealing with respect to the efforts undertaken by my client the fact that he had to retain an attorney while this investigation was going on and the letter was sent from his attorney on april  insurer acted with oppression fraud or malice and subject at the plaintiff to cruel and unjust hardship and oppression as a conscious disregard for the rights of others what what what in your complaint is is  his deposition that they had become very adversarial in their approach to him and so that's why he retained counsel and april th two thousand and ten counsel sent him a letter or sent safeco a letter to the effect of the inventory that was lost but largely goes to the analogue provided for recovery of attorneys fees in that context it does with respect to bridge the tort tortious breach that imply coming to good faith and fair dealing your honor so that becomes part of your damage claim that's correct and to answer your question more amount of ten thousand dollars as well as one thousand dollars check was written on my client's account had been stolen checks had been stolen from his car that would be covered under the insurance policy and was that information provided to the insurance company before your client sued them it was provided to the police it's unclear my question though was it provided to the insurance company before your client sued them it's unclear from the record whether it whether it was provided my clients that they turned it over to the terry is attorney  not send there's nothing in the record which would indicate that that was provided to the insurance company i cannot say i cannot cite to the record or reserve my time warning honor's injured green for safeco insurance company of america and if these court to respond initially to the jurisdiction question then i think the rooms the complaint does include specific damages on the geishas that if you just add them up it adds to more than ninety thousand dollars yes but but only if you have causes of action that are seeking the that are asserting alternate theories i mean if you have a claim that says i want forty thousand dollars for breach of contract and then if you find there is no contract i want another forty thousand dollars for quantum aereo it recovery for jurisdictional purposes you don't add the forty  the forty if there are alternative theories i think that it's a fair statement and here i don't think you can you can just simply aggregate causes of action that seek the  damages but with and with an alternate basis where you can't under nevada law recover both so i mean frankly i don't see how in this case you get to the jurisdictional minimum no matter how you add the counts together my proposal in that regard that i think is consistent with what the law says is first these are causes of action that are distinct that are capable of separate awards of damages as alleged and yes like  i just don't think you can get because they're based on the same laws you can you can't get the same laws multiple times i think you may have a basis to argue that and i take it it's common practice in the  was in some states where you state a number in excess of the question becomes what is there to justify an estimate on your part at the time of removal for a sufficiently high number because i don't think the complaint can get you there in a group judge bent on that you can't add up things where you can't collect at the same time for each of them and i think when you look at the complaint and you're concerned about the dollar amounts that are alleged with regard to this last property you're concerned that the only damages that can be asserted for each of the causes of action is that loss in this circumstance there can be other damages beyond whatever the complaint doesn't cap damages it says in excess of which i know is the practice in some jurisdictions what is there that would support the proposition that at the time of removal there was a good faith belief or a basis for a belief and offend part that the jurisdictional m out requirement was satisfied there is a specific reference to damages in excess of fifty thousand dollars that is specifically tied to the alleged lost property then there are the separate references to damages in excess of ten thousand dollars and for the causes of action for contractual beach for implied covenant and the cause of action for tortious breach of implied covenant each of those are capable of separate compensatory damages whether it's in the form of the embarrassment or other loss to try to play that card you have any authority that supports the proposition you can collect under each category for the same loss or that in fact there were different losses here what would be the different losses the different the different you can't collect for the same loss in terms of lost property but there are now are other damages that are potentially available what the plaintiff was able to state a claim or rather a prayer for punitive damages punitive damages are available in the vatican for the certainly the tort of region but i drive a good bit under under the law that we have to apply and seeing whether we have jurisdiction or not i mean the fact that someone says i want three hundred thousand dollars in punitive damages that doesn't automatically get you over the top for seventy five one thousand dollars if if at the time of removal there's no there's no possible basis for that claim under the law the state or we have to apply right i think that's true i don't think there's any finding in this circumstance or basis to make a finding that there is that lack of possibility instead there are the separate causes of action that each permit damages as well as the ability for plaintiff to pursue she unitive damages another another avenue to look at this that i encourage is looking at the chavez decision that speaks to what circumstance very similar in this case which was the matter was removed there was no challenge to removal by the plaintiff there was no challenge to removal by the district court the shop is the solution specifically says that in the absence of that challenge that there should be that that should be considered strong evidence that the amount in controversy is satisfied and in this case what came to pass confirms all of that one in the plaintive submission to this court on this issue plaintiff stated the interpretation of his complaint that was expressed and intended was that the damages at stake were more than seventy five thousand dollars then the plaintiff filed a motion for summary judgment on that same complaint requesting damages for three hundred and fifty thousand dollars and when looking at chavez and the other religious progeny that says that the complaint should control but also that it's very strong evidence when there's not been a challenge then there should be a finding that that to whatever evidence the defended produces to justify i agree with that and there are other cases but that specifically said there is more that can be reviewed to determine the amount of controvers mean you've put in this locks or report and you've said well it says five hundred thousand dollars in it but that's clearly a typo i mean to me i mean it seems very clear that he was saying fifty the police report says fifty and that somebody just added an extra zero i mean is that is that your best evidence that the amount of controversy exceed seventy five thousand dollars the extra zero and one dollar line of or and several lines of the locks or report i don't think that it's our best evidence instead it is something that certainly existed at the time of removal and if the desire is for us to demonstrate by a preponderance that that threshold is satisfied at that time it should be considered and are you saying we are limited to looking at evidence that exists is it but i haven't removed let's the case that holds that i do not intend to say that i intend to say that the court can look at really anything it wants because the court is capable of reviewing the jurisdiction so a spontaneous in this circumstance that was submitted to the court i think because the order from the clerk asked for information with regard to that time or removal one of the things you submitted was an affidavit i can't remember whether it was from you or one of your colleagues saying that there was a settlement demand of eighty five thousand but the affidavit didn't say when the settlement demand was made i mean when was that settlement demand made that settlement the man by my recollection was made after removal these things though that come to light after removal i submit the court can and should consider because they inform what was intended by the complaint at the time of removal and the cases that speak to what should be evaluated include that you should look at what becomes available in the cases that speak to that specifically allow looking at things like responses in iraq authorities looking at things like deposition testimony however in this case i would submit that there is a mounting degree of information and evidence that warrants finding the amount of controversy was satisfied if for no other reason then it was never a challenge to the shop as case as that that is strong evidence that the amount of controversy that satisfied plaintiff has affirmed to this court both by way of its motion for summary judgment as well that separate submission to this court that the amount of controversy was intended to be more than seventy thank you distinguished judges i would just point out that in s c r for twenty one and for twenty two this is my client's email this is january th two thousand and fourteen days after continued with regard to the conduct of sam at anderson from safeco and in the hilton hotels versus butch lewis productions case in nevada case from one thousand nine hundred and three the court they're held where wrongful action is done in the course and scope of  contractual insurance relationship the act can give cause of action to both tort and contractual breach of the implied covenant of good faith and fair dealing and i just want to point to that because i do think that it's should not go unnoticed because their actions were in deliberate contravention of the intention and spirit of the contract they were not looking to facilitate my client and frankly they frustrated his purpose to the point that he had to go out retained counsel and that's not within the course and scope of the contract is not within the good faith requirements that are required under nevada law and under federal law and because of that we respectfully request that this court find the district court was an error in granting summary judgment in behalf of defendant safeco and hold safeco accountable for their for the premiums the annual premiums of two thousand and ninety one dollars they were receiving from my clients each and every year and had been for a decade