client found an attic this record found an absence of a legal duty on the basis of the court's reasoning that a legal duty would arise from contract in and not arise from an undertaking as a result of the of the court's rulin my client was left with an approximately five million dollars uninsured fire loss to their one hundred twenty six thousand five hundred square foot warehouse as part of our lease agreement with our alessi sunrise sunrise was obligated to purchase one hundred percent replacement cost value insurance coverage on the building bancorp south was the procuring agent having a twenty year relationship with sunrise al taro was the insurance company because the property was going to be added to an existing policy and that is significant because both bancorp south and now tara acted with full knowledge that the insurance was going to be purchased for the benefit of emerald coast  and we know that and that is not disputed because in the record at page nine hundred forty nine there's an indorsement number four to the out era policy where emerald coast was added to the policy as a mortgagee and under the terms of the existing policy at page nineteen eighteen of the record there is a mortgage payment clause which clearly indicates that the insurance proceeds in the event of a loss would be paid to the mortgage so there's no question that the insurance is being cured for our benefit it will close in bankruptcy out also acted with full knowledge that one hundred percent replacement cost value insurance was being requested and required the after the fire there was a report the request about terror that showed that the actual replacement cost value of the property was fifteen million dollars instead of that number by court south and now terra based upon a limited investigation recommended pr placed only five million dollars of insurance coverage what about the case it says if he had noticed yet a copy of policy or information of what the policy letters were that you can't bill the milat nao case in mississippi here's what that case says your honor that cases if the insurer are in this case a third party beneficiary had a copy of the actual policy then the terms of the policy would be imputed to the insured we policy of five million dollars doesn't mean that the company is going to pay a one hundred percent partial loss and this policy actually has a co insurance provision an eighty percent co insurance provision and that's in the record to page one nine hundred thirty four you'll see that the co insurance box checked and it page eight hundred eighty one of the of the record we do look into the contract it tells it tells the insured in this case the mortgagee owner of the property how the co insurance provision would work in the way that works is if the property is not insured up to eighty percent of value then a one hundred percent of the of a partial loss will not be paid and in this case it was not insured up to eighty percent of value it was a sure insure understand sir can with the co insurance clause get more than five million dollars coverage it's not that the co insurance clause would get us more than four four million dollars five million dollars and covered your honor it would signal to the inch inch t my client that there was a co insurance provision in this policy and that he may very well need to look to the insurer to purchase more carving up point is the most you could get by looking into the face of what your client had was f could have applied the co insurance provision and paid less than five million dollars but in order to do that they would have had to take the position that the property was insured at the wrong replacement cost value was insured less than one hundred percent and again this case less eighty percent of back and that's how it helps it it and the inch under that case and then the specific lines of the millennial case it specifically says you got to have a copy of the policy and that's why because their policy insured i'm not covered for a partial off the your thought process is suggesting if it was a total loss of five million dollars would be paid that's correct but what that co insurance provision the policy signals to the insurers i'm not insured for i do understand that and i and the best way i can answer it is we didn't get a copy of the policy that's what millennial requires a copy the policy not the certificate on the mississippi law under florida law it's a comparative fall stage so there is no way that the court could have granted summary judgment under florida law based on receipt of a certificate because it is it's a comparative it's an issue of compar your honor the court decided the case based as i said based upon a legal duty arising from a contract as part of the court's decision the court specifically found the plaintiff it neither pleaded nor argued that it was a third party beneficiary of any contract to procure insurance that's part of the court's order in the record page forty three nine with all due respect to the court that statement is is incorrect in our response to the motion for s seven so we did our third party beneficiary of an underlying contract to obtain replacement costs insurance or contract or cure or as the court called calls it at page three forty nine of our response will cause pled the undisputed facts confirm that sunrise and bancorp south knew they were entering into an insurance agreement for animal caused benefit to obtain replacement cost coverage so to the extent that the corpse error in result was based upon that error and reasoning that error in reasoning that that error by the court is not supported by the record your honor briefly mention that there was an error is a conflict in the law in this case it involves whether florida or mississippi law would would apply and we cited the cape the florida case of daniel versus florida residential to the court in that case the floor of court specifically found that a duty to a third party could arise as a result of the undertaking and did not necessarily have to arise from contract and that's where the the court committed error there is no counterpart to daniel in the and mississippi law the general principles of there but there's no counterpart to daniel finding that the duty could arise from the undertaking to the third party in a negligence case and that's where our that's not what our claim is based on their undertaking to conduct an investigation in that to the physical characteristics of this building they place the wrong coverage and emails from out terror obtained during discovery confirm that they've used the wrong formula to valuate this building  place coverage based on a cinder block building and not one hundred twenty six thousand square foot refrigerator building and that daniel is consist consistent with general clark principles of florida  based on expressing a claim can rise under negligence your honor the i want him to talk to your honor's that talked to you a little bit about the court's decision as it was to the extent it was based on florida law the did not file the amended complaint to plead these facts the case was dismissed you cannot reconcile reihana with daniel unless you understand the reason was based upon a pleading deficiency and we side of the court the flag versus striker which on it is not in the briefs i'm sure all of your honors and for me with that case and that is the plausibility case that was decided by the this circuit blag versus stryker flagpoles the if if the plaintiff has has plausibly alleged enough information that with discovery could prove his case then there is no play deficiency and i would ask the court to look into the complaint at that counts three and four and you'll see the first two insurance for our benefit and both knew that they were often being requested to purchase one hundred percent replacement cost coverage to the extent that the court decided the case the mississippi law erred because it relied on principles of contract law and not negligence law the court relied on the case of bird versus bird versus principle insurance which cites record what westmoreland versus right before the filing that that plaintiffs had to be a party to an underline contract to be cured before they could bring a claim under mississippi law first with all due respect to the district court the westmoreland case is been overruled specifically and and although there are principles that carry forward in that case the primary principle that westmoreland was based on is that that third parties cannot file a direct action against an insurance company and that principle law was overru in two thousand and three overruled to the extent of saying it occurred to a judgment could be obtained that's that's correct is distinguishable from what we're dealing with here i absolutely your honor but if you look at the way that the court built its its ruling it was built initially  n that principle like i said there are principles in the case that do carry forward but it doesn't lead to cases like yours is no go the case you're starting from mississippi where someone you position has been allowed to have a direct action against insurance company w suggestions of something and you're out of that is that the conflict that's why i believe the court has to go back into florida law under section one forty five of the restatement of conflicts that applies to torture and there mississippi cases direction and that's the path that i wanted to take the court down the so that we have rights under the policy to me to make a claim for negligence for failure to cure but i could not find a case under the mississippi and that think just one of the problems with all d with all fairness to the district court that's one of the problems with regard to this tangled issue that we have because so many cases were decided based upon contract law and so many cases worse for example the court cites the ryan versus consistent with the way other courts have conflated these issues to answer just southwick wix question and to untangle the issue before the court you've got to rely specifically on cases of negligence cases denial of the motion to reconsider what's important in this case is the party that is not here sunrise was the insured in this case my client is an insurance agent who received a request from its insured to place five million dollars on a structure they did so they listed as a dish of interest in mill coast we had  no communication with them but we did it what our insured told us to do they confirmed that i'm out on page twenty three forty three a record the corporate representative says we never asked for any other amount  is irrelevant for several reasons first of all they received the evidence of insurance coverage at first of course they denied that but when we took the deposition of miss thompson she said not only did she receive it she still had it and the envelope it came in which she got four days after the lease agreement was entered into and the lease purchase agreement was in fact now one thing i want to lease until after the fire so it made no difference one way or the other we were requested to place a certain amount of insurance we did so the  clearly her were good but we were not told this is meant to be total placement that's what i think it is we followed the instructions they said they wanted five million dollars worth of insurance i mean i can i'm not trying to the evidence of insurance not only mentions the figure five million dollars but it does say replacement cost yes that is the same document that emote cowshed received that says five million dollars replacement cost those were on that figure that amount and that description is listed on the evidence of insurance coverage that they both received what's your best case this is conflicts of law d l says it should be mississippi not florida well first of all of the cases that we've cited clearly show that but remember this is declining as i understand it from the plaintiff i don't know what a general negligence claim is you know you got to be negligent in something the claim that they made is negligent procurement well this policy was procured in mississippi mississippi insured requesting a mississippi agent to place insurance so under any choice of law analysis mississippi law would apply but i believe judge sterrett in his analysis on the motion motion to reconsider there is no case law that was cited nor that the court can find and it doesn't make any difference i think what judge terry clearly hailed is the analysis of law the choice of law question is to travel on has a choice of law provision that says mississippi will be the forum and that will be the law all that is afforded what i think at first blush the court needs to keep in mind when  reads these briefs and understands a situation is that emerald coast swaps back and forth between its position and what sun rises position is the insured emerald coast can't get any additional rights or relief that sunrise could ever see sunrise didn't make a claim in this lawsuit against us that we negligent for them their corporate representative in the deposition a believe a mention that page twenty three fifty three the record i asked did anyone from sunrise ever request a higher value of insurance to be placed on that building before the farmer and mr grey says not to my knowledge the reason is we did exactly what our insured asked us to do to place five million dollars and replacement cost on the building when the last occurred three months later after which both the insured sunrise and the additional interest in will co host had possession double covered they meant and the context of her testimony was sunrise get into a lease with us was going to protect us so there's no issue as to what the parties knew as to the value and what it was for receiving a policy in this case first of all it's a red herring it adds nothing to the case at all what they received we're talking about about not any policy provisions value of replacement cost they received that they got by the way that in the lease itself on page two thirty nine i believe emerald coast had the right and the obligation under the release to receive a copy of the policy from sunrise not us so they could determine and the language is that it is reasonably suitable so they didn't take advantage of that i think it's very clear in this case the record shows that when sunrise when emerald coast on the property they did insure fifty million dollars they insured it for an amount  close to that one issue that in the claims that began this matter was emerald coast asserted some duty that doesn't apply in mississippi florida anywhere in insurance for macular an insurance agent does not have a duty to go out in a crane he's someone's property when they come in and ask for insurance in a very simple term where order t mississippi law is very clear the cases we shot in show florida mississippi everywhere and insured is presumed to be more knowledgeable about his own property and what he was doing also the context of this case shows what sunrise did in why it was reasonable this was a lease purchase agreement and emerald coast was going to sell this property lock stock and barrel for four point six million dollars so it was reasonable linking back in sunrise mind that they wanted five million dollars in coverage i would assume that when the owners emerald coast received that evidence of insurance showing it was insured for a five million dollar replacement cost that appeared reasonable to them at least it is uncontested they did nothing it any time before the far to say i've got inadequate coverage they would have t sunrise not us because they were strangers to us other than being listed at the request of sunrise as an additional interest so we're we're in a position where the judge was correct no matter whether you want to construe this claim under florida law under mississippi law there is no duty or obligation that we had to emerald coast to do what they claim in this la or whether we look at these issues under mississippi or florida law the fact remains that immoral cannot obtain rights under discovery greater than those enjoyed by the named insured sunrise and judge joe when you address some of that in some of your questions of mr welch and few moments ago when we counted talking about the she references in the terms and conditions of the policy in the context of the mouth in our case our contention is always been there when we finally get mr thompson to admit under oath in a deposition that she received a certificate of insurance that they had previously lost notice of the amount of cook and as mr however referenced there was a contract at least purchase agreement between sunrise our insured purchase obligations and it was for five million dollars based upon an agreed upon sale price of four point six they never called anybody they didn't pick up the phone and call anybody halliburton reference because she thought we had enough insurance coverage to cover the purchase price of four point six million dollars and by the way we had this contract for provision in the lease purchase agreement that obligated sunrise to build our warehouse back suitable to us and so that's always been our position in this case and i think it resonated with judge stared in for that reason he got the right result is that regardless even mississippi or for the law wives but the hedges baggage their analyzed the duty under both mississippi law because we don't have cases on all four points under mississippi or florida law but what we do have in the daniel case that mr wells reference a moment ago as his florida decision to show that florida law is different or conflicts with mississippi law the problem with daniel is it doesn't getting any closer to my client  daniel as a representative of florida law is very much like all the mississippi cases that we've all collectively decided in our precinct judge stared race in his opinions the law say is that in this case that happened and they can spin it however they want those e mail exchanges between mr carter and sunrise they said we're getting really close in two weeks on a warehouse in pensacola florida we estimate the  endorsement we round up the chain we get an endorsement to an existing policy and i'm not going to go back through what we just said a moment ago but they got evidence of it wasn't until three months later when the fire occurred that anybody said anything about the amount of coverage and so that's the fatal flaw in the argument and has since the time this case was filed is that you never enjoy under mississippi florida law or that with all due respect to timbuctoo greater rights to coverage as a third party named insure themselves enjoy in sunrise and never to this day filed a claim against out here bank or sound the broker in between they were never named as a as a party and never made a claim cross claim or otherwise and so unless you're owners have any particular questions of me that's about as plain as i can say we live is that i believe that this court should affirm judge sterrett correct granting summary judgment in i feel like i'm arguing a fact based motion for summary judgment as opposed to some region of emotion based on a law issue only she decided by this court is a legal duty whether or not based upon this record bancorp south procure the requested coverage is not before matter we never denied getting the certificate of insurance we never we just never admitted the getting it into we could find it in that's when our client tested by the deposition she received the certificate never denied it we just refused to admit it because we had a fire we couldn't find our records herring the fact sunrise didn't bring a claim against bank or sour my advice in fact there are twenty relationship with the bank or south represented may have been a fact that the sunrise president didn't want to meet the bank or south president at a cocktail party and have to discuss this that versus liberty mutual found that the mississippi adopted section one forty five williams versus livery mutual as of two thousand and fourteen fifth circuit case and it lays out the factors for for our choice of law  don't forget that the named insured under the policy was sunrise florida l l c a florida l l c that had to be created in order to have this business it is just another company in name only but it was  florida company that was the name insured on the policy that we know that one of the later there is here is a judge here in do a choice of law with what you say the fact the lease says this should be law that lease if the if the court will look at the i did not cite the florida case of the court the fact that general coast never received a copy of the insurance policy it's a question of comparative negligence under florida law it's miles purses aaa insurance the in your honor just just to sum up and close what our position under the milat nao versus schmidt case the mississippi case under the warehouse food case both of those cases say that there is no affirmative duty on behalf of an insurer defendant to advise about coverage or to take any position regarding coverage but once they do then they have an affirmative duty to use reasonable care and that's what we're talking about  this and say we used the wrong formula out terrors report obtained after the fire by a company called rim kiss using the proper formula the marshall swift valuation formula showed that the proper replacement cost value for one hundred twenty six thousand square foot refrigerated warehouse was fifteen million dollars and that's what this case is about it's about what they did do when they agreed to undertake the duty to evaluate what replacement cost value was one other small matter your honor the fact that we may or may not have complained about insurance coverage that's going to be a fact based question the lease was in in january the fire was in april