issue on reliance or alternatively can she rely on the risk of harm prong nd is a physical injury to property necessary for a negligent undertaking claim and texas and rd can the judgment be sustained based on proportionate responsibility i'm going to address each of those questions in turn this afternoon but before i do that i'd like to make a very fast ten or fifteen nd observation  premiums and it admits telling dr lift that it would pay the bill and then telling dr lifton that it had paid the bill and it didn't pay the bill as a result an elderly widow failed to collect  candor i don't think the record contains that information and i think it's important to note also that the record is not terribly specific as to how many times two thousand and twenty had paid the bill but there is evidence in the record that  again i don't believe the record contains any information on that your honor i'm going to start with the issue on reliance because it i think all of the focus really both in the briefing and in the district court opinion was on colonial savings and the increased risk of harm element but i think it's a much easier case on the reliance prong remember those are alternatives you can either show reliance or show an increased risk of harm and what's interesting about reliance is th colonial savings is also a reliance case in that case all again all the attention in the briefing was that the supreme court of texas said no increased risk of harm the house burned down from fire not buying insurance didn't cause the fire therefore but at the end of the decision the supreme court actually reverses the chain ovi and remands the case because it says there is a fact issue as to  reliance and i want to talk about that for about two minutes because it's it found that fact issue on nearly identical facts colonial savings really oddly in the context of this case even though it involved a burn down houses very similar because it involved one lot that had two houses on it and the insurance company sent a letter to the new property owner saying hey we found coverage on what it called the property and in close the policy the policy holder just he had the owner said i didn't even look at it i just threw it in a drawer they told me they found well it turned out the end the mortgage holder had not realized that there were two houses so they had bond insurance on one house and not the other and of course as luck would have it it's the other one the burned down and the supreme court looked at that and said well we don't think that anything the mortgage company did in gratuitously agreeing to go b insurance caused the fire but we do think that letter to the homeowner saying we've found coverage raises a fact issue on reliance that's going to have to go back for a jury trial now here we ha actually much stronger evidence of reliance we don't just have the e mail we certainly have the at the e mail saying hey we're going to pay it and the e mail the following day saying hey we did pay it we also have listen testifying that this was historically true they had always paid it from the beginning of the contract so how then did the district court reject the evidence of reliance well the district court actually didn't reach that issue the district court decided reliance based on briefing waiver essentially what the district court said was that although they argued argued reliance in her response she did not point the district court to any evidence in the record proving rely and judge starr who i've known for a long time and have the greatest respect for used the line that he uses often which is the line about federal judges not being the pigs hunting for truffles in the summary judgment record and he said because you didn't point me to it essentially you've weighed to the issue and i think generally of course we all know that rule and we all agree with it i don't think any of us expect  client tendered twenty some pages of the contract and about ten pages of e mails and that was all the evidence in him i didn't want to me e mails yes your honor and that was the point i was about to make was that in the statement of facts if you look at volume one of the pleadings record at pages three hundred and seventy one and three hundred and seventy two you will see mislead sions lawyer clearly pointing to those e mails and detailing them for the trial court so in that it's true that in the argument section when they came back to reliance they didn't drop another footnote and they should have that would have been the best practice always but they had identified those e mails for the trial court so i don't think that if you're right that the district court clearly erred saying there's no evidence of reliance no and you still have to show that texas long negligent undertaking extends to non physical harm and then i guess as your other incidents still have to show that and i'll just show my cards right up one when i look at judge out his opinion the coachman and i look at drawing ten it seems like that's an everything you've just said is correct your honor and i as as your honor knows i was not involved in the briefing i think i think this if the court concludes that's the dispositive question i think this is a great candidate for certification explain why i mean as i understand it i know very little about the process of how the court goes about making an eerie guess but but there's got to be something to go on and here there seems to me to be almost nothing to go on the the intermediate clearly are divided and i want to i want to make sure i point out your honor that we i assume the court has seen it but i do want to note i filed a supplemental authorities letter last week in which i detailed five or six of the intermediate decisions in texas going the other way holding that a physical injury is not required so i agree completely i think that question is completely open under texas law and none of the intermediate court decisions really provide any an also say and i'm going to press i could give you a couple of other citations that the parties did not address that is correct many states limit it to physical injury but but not all some do not and so i found two cases that i thought were very interesting one is from new york the question or i'm sorry your honor i got a lot of damage is i'm well i think it is i mean but that's an open question as well i don't i can't point you to any authority or honor and i don't want to suggest otherwise that would answer that question but it seems to me for example we all would agree that it is an asset that would have to be divided in the force for example whether it has cash value or not and i think that as i understand it anyway from my limited work in the divorce context a policy like that still has value it just requires someone who knows a great deal more than i do about valuation to place a value on it but i don't think it the absence of an actual cash value necessarily means the a though but i think you know one of the things that occurs to me about this open question and your guess is that the physical injury requirement seems to make sense in the context of an a person i mean we i think in the law we draw distinctions frequently between physical injury and purely mental or emotional injury and sometimes we limit planes tort claims on that very basis we say we're not going to let you go down that path unless there's a physical injury so nothing surprising there i'm not sure that i think it makes the same amount of sense in the context of property in other words if i can if i can recover for a house that is worth two million dollars for the loss of a house that's worth two million dollars why can i not recover for the loss of the two million dollars that line is is it just in the context of the as we've discussed many states do require physical injury to property but it seems to me that that line in the restatement is more logically directed at the personal injury part then the property injury part i would have the same question for example  i think if we said injury to property you know why could you recover for damage but not loss i mean it just doesn't seem to me like we're drawing common sense lines there but i want to be clear i think all of this is just wide restate and the restatement and the restatement says that of course as as the district court pointed out the texas supreme court has cited the restatement but has never explicitly adopted it or addressed this question let me with my few minutes left i think it's pretty important i talk about proportional responsibility because obviously that would be you know the court could conclude anything it wanted including the need for certification and proportionate responsibility might might supersede all of that i think this fifty one percent finding is it is kind of hard to to wrap my head around in light of the course of the dealing here and the procedural background and i want to be sure the court knows the procedural  twentieth's asserted twenty nine affirmative defense in its answer and did not seek summary judgment on proportionate responsibility it made what it called a public policy argument but neither its motion its brief nor its reply even contain the words proportionate responsibility this was the district court identifying proportionate responsibility and then making the finding on it and my client had no notice of that until issuance of the opinion had no real need even no notice of the need to even address that argument setting that aside i think just on the facts of the case it's a puzzling conclusion because the the whole reliance could not have been reasonable but i would just make two points number one all of us who've ever paid any sort of a bill know that there is sometimes a processing lag between the time our check clears and the time it is applied to whatever account we're talking about so i don't think a forty eight hour or less still way necessarily should have triggered any alarm bells with dr lucian but more important is two thousand and twenty is the expert on  is the client two thousand and twenty is the bill paying practice management expert and when they're telling him it's just very hard to understand why the client in this situation would be at a fifty one percent and the entity responsible to pay and with all of the expertise in these types of matters would be at forty nine percent that's i think a very difficult conclusion to justify at a minimum it seems to us to be a classic fact issue and the trial court tribally should have allowed that one to proceed to trial to hear the testimony of two thousand and twenty as to the history of payment on this bill and you were any texas case that is our state law in texas that unquestionably would go to the jury under federal law accords i did no cases either correct the district court cited i believe this court's authority talking about that rare situation where all the facts are in and et etc and i think that was the district court's thought process and why it could resolve what otherwise we all i think would agree is a classic i'm out of time so it's no more questions i'll thank you personal life insurance policies was august st and that message only contains some type of document that referenced another insurance policy that ended with one thousand four  was one that just didn't stick it out it did look like it could conceivably be a practice expense you know for anything that outreach practice might might spend money on they didn't dig that deep  about that but that's all the that's all the evidence that there is it's the end i think the timing of these e mails is important just because mr barrett was just talking about how  individuals are responsible for their for their own you know personal the person responsible for the responsibilities of a fundamental premise of texas common law right but it's not a question  there's a bench trial does anybody have any witnesses they want to bring you know that you can't just say oh you know since you haven't asked for a jury trial i'm going to it's the summary judgment stage invert this to a bench trial you have you have  authority for that a judge can do that without you know you're under didn't the case was going to be a bench trial from the very beginning a bit it wasn't was going to be is responsibility it is just sort of a big guesswork that's something that's triable well hidden if you're right that i think that that it the right page about so what would you recommend we do with that would it be a best a certification question well i think the district court was just saying that there's no evidence of a lot less well before it got to the reliance point it's pretty clearly says that as a matter of law texas would require physical harm this isn't physical harm this is an insurance policy it was a fairly extended discussion are you defending that or is that an open issue in texas law yet your hon i would agree that it's a big issue in texas law yeah that's my conclusion i guess i was just trying to be it seemed like a backstop that the district court relied on was th that there are a lying room well at again that there's nothing in the record that would say that there's you know the history or practice of us paying these personal invoices and and certainly it was never may be that you have to satisfy a business expense care i don't believe i have anything else but up additional questions for you rick thank you your honor i want to be clear in my answer to justice higginson's question i think i answered it correctly but i want to make certain judgment which is where counsel was arguing they asserted this and that section of the brief does not cite the proportionate responsibility statute does not cite any proportionate responsibility statute case and does not contain the words proportionate responsibility they were making a different argument they did not make this argument and they did not cite the proportionate responsibility statute in their reply proof so it is i think beyond question that this is an argument that an affirmative defense that the district court identified from the answer and then proceeded to make part of the summary judgment with respect to the factual question let me just correct one point there is evidence that this bill had historically been paid by two thousand and twenty and by paid by let me be clear there's perhaps i've been loosing my language here i'm not suggesting two thousand and twenty provided the funds i'm merely suggesting of course that two thousand and twenty perform the physical act of paying with the practices money but there is that evidence and it's in the appendix that the last exhibit to my client summary judgment appendix was an affidavit from diana and paragraph three says on or about august twenty three j invoice for the policy with the request that in the defendant process the invoice for timely payment per it's usual custom and practice with j now that's certainly not as strong as we might like it to be it doesn't contain all the dates of past payments but it is evidence in the record that the payment on august th teen absolutely was not the st time two thousand and twenty had paid on these policies it had a custom and practice of paying this for dr lith that evidence is enough to at least create a fact issue our the jury or the judge on a bench trial might wait in the future the same thing is true i think about the e mails i mean i'm so in the e mails on august rd dr lucian sends the email we're all talking about please pay asap well i think it's important that e mail didn't occur in a vacuum he there was an attachment and the attachment was for the policy that we're talking about please pay was talking about this attached invoice on this policy and the response comes back crystal clear from two thousand and twenty we already paid and it cleared the bank that's what two thousand and twenty told them and they knew it because later when all of this kind of when the rubber met the road on all this later on they didn't deny it the same woman when dr lifton sent an email after the policy left saying if you go back through your e mails you're going to see where i sent you this invoice the same woman a twenty wrote back and said i am so sorry for exclamation points i did miss sits and will call them today to try to correct this issue again i'm not suggesting that's anything is a matter of law but it sure enough to raise a fact issue on reliance and even later than that the principle of two thousand and twenty rights to a representative of dr lifton and says explains the whole thing i have a client who instructed us to pay a bill for term insurance we paid the bill and then he says you know it turns out there were two policies he says i'm working with my risk manager who is working with my client's insurance carrier to come up with a solution so two thousand and twenty wasn't the nyingma that it is that it just made a mistake it got the invoice from dr list so i just think that's important to sort of clarify the facts the bottom line here in our view is that on reliance and proportionate responsibility these just clearly were fact issues that needed to be resolved at trial whether it was a bench trial or a jury trial with respect to physical injury we believe probably the better course would be certification simply because  just doesn't seem to be a whole lot that would inform the decisions eery guests but if the court is inclined to make it your guess as i've indicated we just don't think it makes much sense to require physical injury to property thank