they please the court this case holds that it is not necessary to have any opinion evidence to prosecute a property damage claim under indiana law good morning your honor is my name is edward herne i represent member select insurance company in this case it was a case for property damage under a homeowner's policy number select was the defendant in the the owner of the property and the named insured under the policy was the plaintiff and the case proceeded to trial in june of two thousand and sixteen and resulted in a verdict in favor of the plaintiff of eighty seven thousand dollars we have appealed that decision and i believe there are really two issues in the case and the first of the first one is the one that i mentioned just a moment ago which i think is the most important and that is that there was  no pinion testimony offered at the trial regarding the value of the property which was the home that was burned to the ground did mr thorne offer his opinion he did not your honor but he testified what he wanted for he testified under indiana law i know by the way i think this is an open question in federal court but in state court the case law does say that the owner of a piece of property is permitted to testify regarding the value but it must be a properly it must have a proper foundation and so there are some cases in indiana where owners did attempt to testify regarding the value of a piece of real property and the opinion was was ultimately rejected the witt case is the case we cited  court and the issue was the value of the property and the trial judge heard testimony from the current owner owner and a former owner regarding their respective opinions regarding the value of the property and ultimately struck those opinions finding that they were did not have a sufficient foundation and then or it then entered a directed verdict in favor against the property several years well as the multiple years you're on to the fire was in two thousand and nine the owner purchased the property in two thousand and one there was some testimony regarding the refinance excuse me he purchased in two thousand and two there was some testimony of  refinance in two thousand and four but importantly your honor there was a lot of testimony regarding what happened in the real estate market in two thousand and nine it excuse me two thousand and eight in this trial and so on that unless i mean did you didn't offer any evidence of up that did you about the there was no valid relationship between the sale price and the refinancing i think i would have sustained the plaintiff's burden if i had done that because while this testimony is is sufficient just start the foundation for the plaintiff to offer his opinion it was never offered if mr thorne i at least if the case was in state court if mr thorne had said and based upon what my brother bought it for what i bought it for my refinance i think at the time of the loss my home was worth x that would have sustained the plaintiff's burden as i say in state court there's an open issue about whether or not i cited the case from wisconsin that suggest that might not be enough in federal court because rule them the opinion rule still apply and would supplant the indiana case law but regardless that issue's not in this case because there was no opinion offered so it wasn't argue that to the jury that there is no valid out or adequate evidence as to value absolutely and i did r t that and the jury rejected it and i know that and that's right they did and i think that was there because there was insufficient evidence to support it you know testimony regarding the price is a fact testament morning regarding taking issue oh no i'm sorry at you seem to take issue with the failure of the jury to itemize the damages of ward you could have requested an instruction requiring a mice damages couldn't you have no we didn't really take an issue with that i know the plight of the plaintiffs  suggests that what we're saying is that because there wasn't testimony of the exact number that's not really what we're saying and the answer question we could have asked for that we did not ask for that but that's not really the issue that we're making what we're where the argument that we're making is that the plaintiff was required to provide some opinion evidence regarding the value of the property at the time of the loss and that was not done now you ar purchased the price for the purchase the property for eight years seven years before there was intervening testimony regarding a change in the market during that time i think if he would have testified  thousand eight hundred ok right but the i guess the intervening point is that the intervening fact it's important to know is the testimony regarding the change in the real estate market that occurred that mr thorne admitted agreed if it had a ffected property values in northwest indiana and i think if he would have provided an opinion either himself or from the real estate up fraser or estimate or and we're not saying that it was a lot of the price of the the sale price come into evidence and what did that show it well that he purchased it for seventy five thousand dollars your honor well what if you say that he didn't put any evidence of what the value of the what that evidence come in and then what's the difference you know and i was i started to explain this a moment ago i think that's have testimony regarding the price is a fact you know i paid x but what is required under the whip case and all of the other cases that we've cited there are some sort of opinion testimony regarding value and so value is an opinion so it's not a fact those are two different issues and i think in order for m testify regarding value things like what he paid for are required to be laid into your argument is if if he sold the paid one hundred thousand dollars on a one day and the next day the house burned down but  correct it was too far away but that's i think judge katie i think the the testimony regarding the change in the marketplace and the fact that it was purchased by the way at the time it was purchased as a result of a foreclosure sale there was an intervening refinance and then a change in the market what did you offer evidence to show that opinion evidence to show that this to show the change in the market mr thorne tests to that degree there was what he bought it for what he refinanced it for acknowledging there was a change in the market in two thousand and eight now i think he's laying a foundation to offer an opinion but that's not the opinion and i think that's the difference that makes the difference in this case you know there's also an argument that we person in our brief a whether or not that the opinion regarding a current value is sufficient that's the discussion about whether or not the policy defines actual cash value  is arguing in the district court found that the actual cash value did not mean replacement cost less depreciation we think that's an incorrect interpretation of the policy we think the policy is clear we've cited the case law from three other jurisdictions with similar language actual cash value has not and the under the broad have a dance rule depreciation can be considered when determining actual cash value can't it it can be and what are saying is the broad evidence rule doesn't apply in this case because actual cash value was defined by the policy according to its terms in the pop portion of the policy in titled how losses are settled the policy explains that we will pay actual cash value at the time of the loss in settlement this includes a deduction for depreciation for building structures it says we'll pay the cost to repair or replace without a deduction for  we're saying is that the broad evidence rule in indiana applies when the policy doesn't define actual cash value here the policy did define if actual cash value not in the definition section but in according to the terms of the policy where it describes how losses would be settled and so because of that beyond just the opinion requirement regarding the value that would require the plaintiff to introduce evidence regarding the replacement cost which was not done in this case and evidence as to pretty pretty she a sion in order to prove the losses that were payable under the policy so what i started out by saying is there is no opinion in this case regarding value i think that ends the inquiry and the court doesn't even have to reach the question of whether actual cash value is defined in the policy and that needs to be determined on a replacement cost less depreciation manor or under the broad evidence rule but if you do decide that testimony regarding the cost of the home was sufficient in two thousand and two then the you do have to reach the issue about whether the broad evidence rule applies and we don't think it does because the policy defines the actual cash value and we district judge was not the district judge that tried the case threw out a bad faith claim but kept the policy claim but issued an order saying i don't know how the jury couldn't find that the plaintiff or his brother didn't have something to do with this fire but that's for the jury to decide now we're not appealing that issue but that was the reason that the claim was denied originally in addition to the fact that used as a residence and it wasn't being used as a residence by the named insured david thorne who's the plaintiff in the case for over eight months he had resided there for eight months sell unoccupied owner insurance policies that's that's exactly right if it's not being used it and that's and the reason for that your honor is there is additional recei health care even if you know someone might gain there once in a while yes judged and the reason for that would be the risks are that the policy is written for a premium assuming that the home is occupied and that's why it says it must be used as a residence so if it's not being used as a residence then coverage could be denied and that's why there's a whole book of business route for four unoccupied homes and i see that my time is up but you could finish answer your question i was finished but it looked like i had one question well wasn't the jury properly instructed on residence alternately isn't it a jury question on the definition of residence i don't think  think they were and sprog really instructed on the definition of residence the issue was the policy says that it must be used as a residence and whether or not there was any evidence that it was being used that as a residence at the time of the last our position is that there wasn't and by the plain and by the named insured by the way and that would be the plaintiff and he hadn't stayed there for over eight months he testified that he was visiting his home multiple times that here thank you my name is nathan bissonnette represent the appellee david thorne this year honors is a case of common sense it's a case of whether or not we allow the jury to assess the facts that they receive to digest them and then according to the brought evidence rule to deduce from that a logical estimate of damages and that's to pull from the broad evidence rule directly in my client contends that  not up on appeal it was not preserved but prior to trial there was an effort to you submit to the court evidence of a reconstruction cost however the opposing side made the claim that they never received it during the discovery process the discovery process prior to my entrance to the case we believe our records show that it did but the court did not but even beyond that your honor we believe that my client did tender evidence to the jury sufficient for them to assess the condition of the home at the time of the fire two thousand and eight they saw pictures of the home they heard testimony what was in the contents of the home in addition to that your honor it's as we take a look at the broad evidence rule the broad evidence rule does not specifically limit the facts is that the fact finder is going to assess to the date that the fire occurred rather as we take a look at the broad evidence rule it's a wide variety of things it says the original cost of the property we all know th original cost of the property is not going to be the day of the destruction and that's something that they considered and it's a variety of things that an appraiser would consider that the jury can consider and that's what was introduced in this case well i'm  no your honor and actually as i previewed again the trial evidence for last summer there was no evidence of depreciation that was offered and it's been tendered to this court that there was a lot of discussion that occurred before the jury as to the downfall of the economy in two thousand and eight and actually the only evidence that occurred in discussion that occurred of the downfall of the economy in two thousand and eight occurred during a member selects closing argument to the jury at which point in time it was referenced that there had been a downfall in the economy notwithstanding that aside that's also something that i want to have a conversation with the court about today is that it is clear in the state of indiana it is clear in this circuit that the jury takes into the jury box at their ng as well as back into the jury room their life experiences their common sense they were instructed in that jury instruction ten in this case that is the state of indiana law that he jury takes into that seat their common experiences and into his third as they're assessing the facts well how could they have done that in this case as the judge pointed out earlier my client purchased the property in two thousand and two how did he do  utilized an f h a loan anyone that has purchased a house knows the process that one would go through to get an f h a loan that there's an appraisal process my client give testimony that in two thousand and four not only did he refinance his mortgage but at the same an additional twenty thousand dollars line of credit again what does the common sense of a jury enable them to do to assess that of banks not going to issue money unless there's the collateral that's backing it again supporting the basis of the value that my client had in his home now i'd like to talk through four points that i think are important that are in relevance to this case and perhaps in the court please tell me if we should move on from this but i think the first question that i think we need to address is whether or not this policy that member select has touted actually defines actual cash value the district court clearly no where in the policy do they find how actual cash value is supposed to be defined and or calculated and actuality with a lower court says it's not in their full member select says it's implicit state they acknowledge it's not as the lower court district judge are reasonable people are able to review this contract and not find it in their specifically pages six and seven of the lower court's opinion in january of two thousand and seventeen the lower court judge specifically cites that the policy language quoted above says defendant will pay the cost to repair or replace the damaged part of the public construction however if you choose not to repair or replace the damaged property then settlement is on an actual cash value basis but doesn't describe the actual cash value basis should be found in addition your honor turn your attention to page ten paragraph and one that's why i think something's missing or maybe extent what this policy tells us and my client is not disagree with is that there is a difference between replacement cost and actual cash value and we would agree that actual cash value is less than replacement cost and it should be as indiana courts have said starting in one nine hundred eighty two actual cash value is indemnity not to put the person that has made the loss in a better position but to make him whole for that which he has actually lost now to your point your honor it does state that actual cash value in some spots this includes depreciation but as well if we turn our attention to page ten of the policy at the very top right the second column it defines actual cash value in not including depreciation and furthermore if we turn our attention to paragraph one on page ten there's a conjunction that is so important members like says here we make a cash settlement or take all or part of the damage property at its appraised or agreed upon value or we repair rebuild or replace the damaged property as set forth below as a district court found nowhere is there a specific definition of actual cash value and in addition there are two at some points in this policy it reflects in read this discusses that it should be less depreciation at other times it does not notwithstanding that again my client would contend to the court that the district court was accurate when it said as part of an actual cash value determination using the broad evidence rule the jury can consider depreciation and at  times they should so that the person who has suffered the loss is not put in a better position than they would if that end is the word depreciation anywhere in the broad evidence rule instruction here are going to read the broad evidence rule well not the rule but the instruction was given it be it was not right the instruction that was given to the court that was given to the jury basically stated in essence to provide to my client the damages that he otherwise would have received pursuant to the policy there was no mention of depreciation there was no mention of that that i recall in closing argument or during the course of the conversation in cross examination or direct examination of my client it was not specifically requested of the jury that they consider it rather it was to make my client whole and not to put him in a better position than he otherwise would have been in the numbers look under an alternative instruction that included appreciation in europe i do not recall one nor do i recall any argumentati at any time and in conjunction there with as we've also pointed out to the court the specific jury instruction as well as the portion that the jury was to fill out if they found an award from my client it was a joint venture between the parties to submit to the court that did not parcel out personal property and did not per parcel out what the loss was to the real property so to come back at this point in time and say that because we can't identify with specificity you submitted a joint a joint instruction that requires the jury to say how they arrived to figure correct all they were to do is arrive at one figure it's not parcel it out and now what members like desires to do is to say because we don't know exactly how they got to that number we should be allowed to utilize that in our decision for a joint number to say there's no specificity here in the jury was obviously speculated you may indiana and subsequently the supreme court addressed the lineage of actual cash value and what should be applied to damages that are offered and what the court of appeals and what the supreme court stated in those cases is that actual cash value is to indemnify the person to put them in the position of their loss and not to benefit them as a replacement cost has a tendency to do to give one something in replacement that's better and as part of that inde ication process of the broad evidence rule the person that is giving the damages as to what they lost in the jury can assess whether or not depreciation is part of that so you're saying that the broad evidence room or comes this particular absolutely takes that into account in your honor if you were to turn to ramsey or to the travelers case in one thousand nine hundred two they addressed one of the third options at dealt out there to assess actual cash value and the courts absolutely state that you may consider it now beyond that you're out of the blast you have look to focus on is and i started by talking about the province of the jury and this court must assess whether or not there is sufficient evidence for a reasonable  to support the verdict that was offered and the only way that we overturn it is if there's no sufficient evidence whatsoever and as we've pointed out in the briefing if we take a look at annie as well as the ramsey case is the valuation that the jury afforded within the bounds the range of evidence and the answer is absolutely yes now member select would tender to you that it is not my client testified in the closing minutes of the direct examination that i proffer to him last june mr thorne what are you requesting of this jury what have you lost he said i lost my home my only home and i want the full policy benefits of one hundred and forty two thousand dollars now members like claims he offered no basis for but as randy tells us the value after all is a matter of opinion in conclusion the broad evidence rule does not require soley opinion it puts the jury as an appraiser to assess all the facts and then render a logical formation of a correct estimate of loss in my client tenders that's exactly what happened in this case he's testif the fresh underwear the fresh socks that he found while throwing his homes contents away after it burned down he testified as to the repairs that he made to it he testified to the personal contents the tools that he stored in the property clearly he set a foundation that was within the province of the jury to assess and then subsequently make a decision we've talked about how members like his claim that the data wasn't up to date but that it was up to date he provided testimony as to what it looked and looked at when he was last in the property proximate three weeks prior to the fire in addition to that he's also give me my time  ok in addition to that he's also testified as to how he had to tear down the premises in addition to that members left put on their own adjustor we put on the just the testify that the property was an absolute loss and as we know by indiana law if you find that there's an absolute loss of the five there is life villainy on behalf of the person that was to pay that automatically creates nominal damages the end of the day my client requested one hundred forty thousand dollars he was not granted that  granted eighty seven thousand and my client is content to rest with that decision of the jury thank you thank you because a case would be taken under advisement prior to moving to the