this appeal is about georgia law as it pertains to property insurance contracts i'm going to st address the court's legal error the district court's legal error which we see as a critical issue in this appeal and then i'll address the issues raised in the defendant's brief to the extent the court has questions about them though i will note at the outset that bennett's brief is primarily focused on issues that the district court never reached because it bypassed then as a result of its legal error georgia law it's been clear for over ninety years now that the proper measure of damages and property schilens is based on down and not condition and that absent a valid exclusion a policy that covers direct physical loss covers diminish batty this is a minority position among the states but there is no question about it under georgia law as was made clear by the supreme court of georgia and maybury and again on a certified question from this court in royal capital what  and at the end of the adjustment process either affirm the presence of dish diminished value and pay it or deny the presence of diminished value to its insurer the only relevant question as to whether and insure has to assess for diminished value is whether the type of damage it issue has the potential to cause diminish that and while the district court did not reach that question there is more than enough evidence in the record about the potential for malden water damage which is the damage issue in this case to cause diminished value in order to survive summary judgment the evidence is outline survive summary judgment on that issue would be if the defendant categorically admitted there was a potential but that of course not how summary judgment works a dispute over a question of fact is something that would be decided by the fact finder do you acknowledge and must you not acknowledge that if it is absolutely clear that there is no diminished by you on account of stigma then it would be completely futile to talk about assessment no i don't think so your honor i mean it's a contractual right that the the insured is entitled to and it does have independent that what is the purpose of making an assessment if it's absolutely clear there is no damage due to statement ok and i think imbedded in your question is the idea that do they have to perform this assessment in every case and we're not saying that you know what we're talking about in this case is where the damages raise to the level of an insurance claim and would have to be disclosed and there's plenty of evidence in the record or through our experts that you cannot rule out diminished value in those types of cases but this case arose in a posture where both the fact of demand that you well know was issue and the assessment claim and it was on summary judgement and there was no evidence just assume for the purposes of this question there was no evidence no it's a question of being the even knowing that there is no diminished value so if the insurer tells the insured that there's no diminished value that too isn't that valuable information to the insurer if you know that that kind of information could affect when and if an a homeowner sells their home it could affect whether they're going to invest additional money into their homes or those hypotheticals i mean because here he did sell the house and he he in the buyer and everybody else said that that we didn't even consider that problem so he could hypothetically but we're dealing with a real case here right and that relevant inquiry clear under georgia law is that you measured that minish value at the time of the loss so this sell occurred two years after the loss during a very hot real estate market so the fact that some  no but it was a hot real estate market that the fact of the matter is we didn't try to introduce that evidence because that later sale is of little to no relevance to the issue of whether the house  suffered diminished value at the time of that loss you know other factors that impacted that is the insured himself put over thirty thousand dollars loan money into the house to update it at the time he purchased the home so when you flash forward four years and you know defend it does make a big deal out of them supposedly spending all this money on improvements but really if you look at the the  record in the in particular the plaintiff's deposition very little of what the defendant did was actually new compared to what the plaintiffs had already done himself i think the cabinets were new but other than that a lot of the replacements were simply replacing night items that had already been up to a few weeks but for the purposes of my question they finding that there was no diminished value let's just assume that the district court judgment was correct in that regard was there any concrete specific identifiable injury that you sustained that you can point to on account of the failure to conduct this assessment well yet that the assessment was not done the plane to pad to go out and potentially spend and while he did spend his own money hired lawyers to try to get this done i mean that that's the whole point you know our position is that and as the district previously found in the thompson case you know in order to being quite old to a ram you hired a lawyer to fight over the whether the value was diminished or not you didn't hire a lawyer did you vote the senior l discrete claim of not conducting the assessment am i missing something there is some value that we can attach standing alone to an assessment if you  yes i think the assessment itself had they done it and inform the plant it did have separate value to the plaintive now you know the question is how do you put a dollar value that's what i'm asking you is there any record evidence here that independently established market value in the hearing in the failure to perform that part is it i submit yes so we you know our way to measure that was what actually hire an appraiser to get a diminished value sassaman you know costs somewhere in the neighborhood of two thousand five hundred dollars and that there is evidence of that in the records now another way of looking at it it would be to measure well what is that actually worth not what it would cost him to do it but we didn't reach that question in this case that the posher the case was the  discovery was bifurcated so we were only dealing with you know the question the plaintiffs at that point value to sas and it's and it's you know his individual claim but we think that you know the yes as part of the litigation we had to hire an expert for the plaintiff is that different to we differentiate between litigation costs and costs associated with the sale of the house at least one of the american law there's quite a difference between his story costs and litigation costs right and i think you know it is the district court said below you know requiring a  the morning your honour's may please the court i'm aaron van or representing american family there are two questions before your honor's the st question as you indicated is whether there is any probative evidence at all indicating that american family paid less than the entire amount of mr anderson's loss the trial court said no there was no such probative evidence of a group that the nd question is if there was no evidence of that in other words of mr anderson was paid everything he was entitled to do does he still have a claim a breach of contract claim for the assessment having been done improperly and on that point that the trial court answered no there's no injury from that it contractual problem condition number three in the policy says that if there is a dispute over lost either side can invoke an appraisal but if they invoke that right they each pay for their own appraiser so that so that's in the contract so if he wanted to go to appraiser he had to do it this is its condition number three it said document fifty three dash thirteen page fourteen this is something the district court recognized early in the case in its order on the motion  and so to the extent that mr anderson is trying to shift american family the burden the cost of his appraiser that's directly inconsistent with the contract even if we in such a dispute is the failure to assess if there had not been a failure to assess but there had been such a nuisance meant and then a dispute arises then is there a new assessment that is done orders the insurance company rely on his will through its own prior assessment  no if there's a dispute over the assessment of amount of loss of happens you go to a lawsuit just like this and you figure out who is right and if there is if it paid less than the loss then it's ordered to pay more and if it paid the whole loss there isn't any claim and i mean that this is this is the basic fact of of these these contracts in georgia law is that the point of this is to get paid for the whole loss and sometimes and often a plaintiff in a homeowner's insurance case will say well you didn't do the adjusting quite or you should have done this or that but if you get to the bottom line and they're paid everything they're supposed to be paid there's no interest in multiplying litigation over that and for that matter other insureds in georgia have no interest in making american family go to cost a whole things to no purpose and that's a problem but i want to get to the nd problem with them claiming that the cost of an appraisals that damages the st problem i said that there's a contractual problem that that's inconsistent with what they agreed to the nd problem is is that it's a subtle principle that damages are measured by the benefit to you not by the cost to the other guy and what they're pointing to is the cost of the appraisal that's not the measure of the damages your honor said in a question that if it's accepted that mr anderson was paid everything is entitled to then an accurate assessment would show the pin paid everything is entitled to be no value at all to him and would be futile that's correct because we're because remember the assumption we're in the assumption and because this is what we think the record shows is that he was paid everything is entitled to in that situation an assessment if it were accurate would show that wouldn't be worth anything and he sure can't get damages on the premise that he was entitled to an inaccurate assessment which is almost what's being suggested and the reason this is so clear in this goes back to the difference between mayberry and royal capital i'm a brain evolved automobiles and in a factual finding in the trial court that was reviewed only for clear that in every case of a loss the damage to an automobile even if you fix it back up it's worth less trial court found that based on state farm admissions the supreme court reviewed it only for clearer and it said we assume that the time you get to royal capital dealing with homeowners they said it's unusual if after full repairs it's still worth less and in this case you know what happened as you started out here with a two hundred and forty thousand dollars home  freeze of january two thousand and fourteen a pipe burst and so the value went down but then all the repairs were made and it brought the value back up and what the record showed is that it was seventy thousand dollars worth of new things were put in there this was a twenty six year old house and so was brand new kitchen cabinets instead of twenty six year old cabinets as a new about upstairs bathroom is new floors has a new fix yours all of that and it is as we saw it at the realtor said this is a real showstopper this is gorgeous and so the measure of damages now it's up here because of these repairs better off the question is is there any evidence showing that instead of being worth more afterwards it was worth less not even the same there's just no evidence and i don't didn't their expert and  you know kilpatrick didn't he stayed either a news reporter in testimony that had to it is not uncommon for houses as well as cars to have a diminution in value after serious water damage yes your honor it was so there when you say there's no evidence no evidence no evidence wasn't there some evidence there's no evidence about mr anderson's house and but but we're speaking about we're speaking here on a summary judgment and so we do have an expert saying yeah i was is do i think maybe even generally suffered damages if they were water damage of course that itself could be questioned about i and i take it enters and has never been certified ricco poetry has never been certified as an expert but that issue i take it is not for today but at least times suggesting that there was some evidence yet that this is like the difference between general causation and specific causation you know in a medical injury or are at the general causation is that you know they establish that a drug or a chemical can cause a certain industry or injury specific causation gets point did it cause it in this person essentially what happened here is mr kilpatrick focused all of his energy on what the general causation point is it possible for stigma and i want to point was i think you may have misstated the record to say there was no evidence oh know in let me be specific what we think is there is no probative evidence as to mr anderson's house but if this statement is that houses do suffer damage i don't members exact language where there was can or do are likely but but at least at the summary judgment stage where we simply have to say is there any evidence to go to a jury we do have that statement by him that say how is this can or do suffer damages from water now of course then the cross examination we will how much water and how big a flood and how all those things but at least for summary judgment wasn't there that in the record yes there was his statement in the abstract your honor but what  failed to do as a failed to ever bring it down a mystery under so so we're not dealing that there was no evidence now on summary judgment you were dealing with the fact there was no credible or no persuasive or no sufficient evidence and is that the kind of thing that we worry about on s judgment well if it were a credibility finding that that would be out of line or there's no doubt about that and it does have to be sufficient to present a jury question has to not be speculative and so here's the best case we cited the most analogous  value for a particular house is to make a demand by appraisal which would be an appraisal before they dam a general appraisal after the damage which appraisal after the in eliminating any diminished value and we know that dr kilpatrick did not make such a post event appraisal he did not go in the house he did not look at any of the repairs he did not make an evaluation of how successful or bias were aware the in this case they  completely or they left it with some damage so the only evidence in the case is that of dr kilpatrick and his evidence is you you have made my response much better than i did let me let me give let me ask you a question about that did not the expert offer an opinion in particular i was looking at you may not have done before and after an hour says but at least a high order of abstraction he says in response to the american family experts assertion that kilpatrick has not offered any reliable basis to support his professional opinion that all class properties have the potential for a diminution in value he says american family ignores the evidence submitted based on the post repair sale of the anderson's property and he concludes he says the only property i have opined on  in this case is that of the anderson property which shows approximately thirteen percent diminution in value post repair he says that repeatedly and said that sale two thousand and sixteen sale is a relevant so the one thing he specifically said about anderson they took back the reason they took him back is because the statistics on mr kilpatrick's calculation showed that confidence interval the range of values encompass that is that margin of error confidence the margin of error and that's undisputed that's why the plaintiff's lawyers are running away because that sale actually shows it's evidence there was no diminution in value because the sale price fell right where you expected to call it right all i'm saying is that he doesn't are certain generally and baldly one he did make an assessment of the anderson property and two it showed post hoc a thirteen percent diminution in value that as opposed to repair he says that a couple of times i thought what you were going to say to me is he may have said that but there was no foundation for it for precisely the reason the judge anderson suggested to which he never did a before and after an hour of service and so his opinion was of no moment it wasn't methodologically grounded in the kind of study you would have to do have i misapprehended this no i agree with you your honor he he it's clear he did an assessment an appraisal  he says the sale data shows a diminution in value and but the reason that the district court said that doesn't create a fact issue is playing a street withdrew their reliance on that if you hadn't done that would you would you concede there  then if he if if players hadn't withdrawn that if they hadn't withdrawn that and if the confidence interval didn't show that was specifically meaningless then we would confess there how how do you think this damage should have been proven on on this in yeah look at it in a post forget the damage appraisal just look at the post how would you have done how do you think it should have been done properly well the shuttle looked at that sale and that showed no damage but then the sales not enough because then you have to look at how much all of the new materials and new repair is brought up and you have to consider on the facts of mr anderson's property whether there could possibly be enough stigma to take it back not only down to value so you don't quarrel with the fact you use the sale the actual sales price as what a willing buyer and seller would sell for you just think he didn't then back out the proper components had he done so you would potentially agree that you had a case if a sale price showed a diminution in value that would be a real information yeah that would be right that the two things here is the sale price showed no diminution in value and you didn't account for all of the other factors and  you don't quarrel with the fact that you could take the standard housing index appreciations multiply that by the original appraisal to come up with what would be the expected price of the sale oh i got to i have to think about that your honor but i don't think i don't think it was part of our argument for summary judgment here that the baseline was off no no i'm not going with the baseline but the escalation up to the actual sales price if you escalated that by the housing market index because kilpatrick his is his general system that he wants to rely on does use that that technique yeah and as a general i want to be careful because i haven't thought specifically about that your honor but i know that we don't have any dispute generally that there are indexes for inflation because american family uses them in rate and in calculating repair you your honour's so i was glad judge anderson that you eventually did mention paragraphs thirteen and eighty seven of the rebuttal report because i think there are clear very clear that he did appraise in fact that's what he says in paragraph thirteen i did appraise the andersen property and determined the thirteen percent diminished value and as he points out that was done as of the time of the loss so we went back and looked at it and it was known h said all of which made it clear that his opinion about thirteen percent was based on the houses not anderson's house is that not that clear that's not accurate  he did actually perform an appraisal he didn't go into the house to do that and there's a reason for that for diminished value you want looking to see if the repairs were done well given it diminished i used to find in georgia  intangible stigma from the fact that it had suffered the damage so you assume that all the repairs brought it up to the same condition and is there still a diminution in value just from the fact that it had gone through this damage  question counsel this way did he make a before and after analysis he absolutely did where does he say that that is in paragraphs thirteen and if he got at me that looking at that what he said was the only property value i have opined on thus far in this case is that of the anderson property which shows approximately thirteen percent diminution in value post repair and he repeats it suffered a diminution in value of thirteen percent he says that repeatedly but point me specifically to where he may have said i made in the now it says before and after ok and his report discusses the process for an appraisal and it is done has he ever say specifically i did a before and after yeah he well he explains it in paragraph thirteen as i have a pint elsewhere diminishing in value are performed on a before and after basis and as such the effective date of the praises should be the same in both unimpaired and impaired conditions to isolate the market effect of diminished value to stigma from any market a priori creation a market appreciation or other factors that's the purpose of that statement in paragraph thirteen of the embargo and i'm going to read you paragraph thirteen i did appraise then to some property and determined that based on the there any other reasonable way of reading that well yes the he appraised the anderson property when he says that that has a specific meaning and then he reconcile that with those case studies and surveys and we on what i just said he done so i based on any examination of the property and again in paragraph eighty seven he says based on my expertise and experience in the appraisal field and having appraised impaired properties for over thirty years i concluded to a reasonable degree of appraisal certainty that the anderson property sustained a diminishing in value of approximately thirteen percent it's you know using that word appraisal you know means something in the appraisal field i mean he conducted an actual appraisal you know the fact that he didn't walk into the house and inspect the repairs you know if you go back and it's  mentioned in the record in this case there was the c h i s case and those appraisals for perform simply through desk assessments and appraisals and that's a valid way of doing it and reconciling using case studies and literature and surveys are all recognize basis in the appraisal field for doing the appraisal so yes he did an appraisal