highlands was asked to preach your all risk insurance coverage for austin highlands midwest insurance company shopped the market and produce the policy issued by a  an insurance policy which would cover all risks fargo was a captive agents of american family insurance company forward to produce the policy the policy american family insurance denied coverage of the claim a decade action was filed that ultimately the case ended up the way to the supreme court the supreme court analyzed the case on based upon the fact that they analyze the case from the perspective that a captive agents of the company does not always duty to the insurer they were comparable so when a person walks into an american family office they know that vets an american family agency they're issuing an american family policy and the bed agents obligation sells itself as a company to represent the representing the insurers often in the case of american family forego could only sole woman american family policy in our case midwest insurance was asked to shop at market to provide the best possible coverage for the denature of our business so they were found laid out right outside what's what's covered there well the policy was issued by the company produced through midwest insurance and my client had the expectation that they would prefer an insurance coverage on the policies health multiple exclusions you buy an insurance policy your roof collapses on your house of the company so as well we've got an exclusion for wear and tear and then these types of actions well the policy that was issued by a i g included only personal injury and property damage that policy should have included all risks and we that we if we had walked into the ai g office and said we're we want all risk insurance a i'd choose a company or of even if it was a to a i g asians are that that agent would have a responsibility only to the company my client hired did was to shuras for the purpose of preacher ring insurance coverage for the proper complexes the best possible coverage policy to see that they didn't have that coverage and three years later the facts well because you are my client relied upon that was to ensure us as its agents to procure insurance coverage for which was available in the market at the time but this policy was issued and this coverage would would have covered the claim that was asserted by the plaintiffs of a class action supreme court made particular note of the fact that the forego was a captive ager of a company and they applied the concept of a tort arising out of a contract to of action the statue of limitations would start to run of the date of the event you get hit by a car the statue of limitations for suing the other driver starts to run to do that you were hit you claim that it was negligen in the case of insurance coverage you to date you know or ought to know the travel claim is the date when you learn that there was negligence on the part of the of a party on in this case in the case of austin highlands we didn't know that there was a claim on till we found out that we didn't have coverage for the claim that was asserted now we had the expectation that midwest insurance which we paid a premium to to place this coverage would provide the coverage that we expected in connection with the operation of our business and one of those possible events would be being sued by a tenant and that coverage was available but it was of provided by midwest insurance and because they didn't provide it i believe that they were negligent in failing to procure the proper insurance coverage we didn't know it until the time that we were sued and so to apply a retroactive commencement date for the statute of limitations to date before we have a new reason to know that we have a claim i think in the case especially of an insurance broker who's hired by the insurer to represent him would be unreasonable but it seems to me that there was more of a progress week including brokers and agents in the decision that they were both produces of insurance and that rather than looking at the breach as a tort they're looking at legal especially cross they're looking at it as a contract and the breach of contract occurs under the case law cited in here  crime as the date that you get a good contract and that's how in this particular case not because the person with a captive agent but because they look at it as a breach of contract that occurs at the moment you contract and to impute a commencement date all of that data for contrast when you're talking about the liability that arises from  that isn't even contemplated on the date of the contract is unreasonable i don't think that a person who spends money to hire a broker and paste special premium to retain that broker to procure insurance coverage should be required to in addition to consider every possible event that might occur during the policy period and ascertain by reading the policy whether that policy would cover those events that's what my client hired midwest insurance agency to do they're supposed to be experts my client operates and owns apartment complexes it's not an insurance expert and if we accept the universal application of the clock the solution every homeowner is going to have to go out and hire a lawyer tobe read the policy and then they're going to have to decide ok well my roof my collapse in six months i'm only going to be covered on the their might be a seepage of of water into my into my basement well people when they buy insurance have the expectation because of the wave of the say advertised you're in good hands they're going to protect you where all the sudden when you have a claim those hands separate and you've the the insured laying on the floor and i think that people have a right to expect especially when they hire a broker to place insurance covert for them the fed broke rich that they specifically request now we allege in our complaint that we asked for all risk insurance coverage that all risk insurance coverage would have covered this point in this case midwest insurance did not place the coverage that we asked for they they placed coverage only covered personal injury or property damage and as a result we did we had to defend this class action so unlike purchase case and the crop case we're not dealing with a captive agents we didn't walk into an american family dealer of an american family office and ask for them to produce can imagine my position that two weeks after i found my lawsuit the supreme court comes down with this case i guess all i can say runner is that there is a material distinction between the facts in crop and the facts of our case and that distinction largely arises from the relationships of the progressives in crop you had prop up an american fil owning apartment complexes those are better who you are if you're if we read the crop decision and we make it universally applicable that you're you've got to defend yourself and that the all the advertising that we hear on television about how insurance companies have your interests at heart when it comes to processing a flame that's no longer the ca in that the crime case came down two weeks after they did and their arguments about fairness that as your honor pointed out this is really that's an issue for the general assembly and as your honor pointed out this case was very clear on the situation  statute is very clear in this situation this involves the interpretation and the interplay between two statutes the insurance producers act and the insurance it's insurance placement liability act midwest is an insurance producer under the place act as you get both of pointed out that's a broad definition that has come up and that was decided in the scabbard this case in two thousand and fifteen and was actually specifically pledged by counsel in the complaint that even as a broker it biased is an insurance producer under the act so he's kind of trying to backtrack now to say oh well they're not actually an insurance producer that was specifically addressed in scabrous and council tries to distinguish here in  captive agent versus broker but again that's not relevant to the situation what is relevant is are you an insurance producer and both of those entities fall within the definition of an insurance producer the issuance scatness while it was a captive agent if the situation involved the click ability of the placement liability act to a captive agent prior to the passage of that act counsel is korat that the duty owed by a broker went to the insured and the duty owed by a captive agent went to the insurance company that was in effect eliminate it and the plaintiffs and scatter just try to say that no it really only applied to everybody it did apply to a captive age and it did apply to a broker and the defendants in that case came back and said no no no it only applies to progress it was agreed among the parties among the court of months everybody that insurance producer already included a broker the issue is whether it's broadened to include a captive agent so filing counsel's line of argument we are broker we were already even before scout protests included in the definition of an insurance producer scabrous did nothing to change that it only broaden the definition or clarify the definition to include a captive agent and the court specifically states in scout purpose it adopted the definition of insurance producer in the insurance code and specifically said it is a broad definition that includes both captive agents and insurance brokers counsel may not like the way that this applies to his case and again i can sympathize with that but the fact of the matter is that this is a supreme court decision that specifically addresses that issue so moving on but the fact that this clearly midwest is an insurance producer then you go to the next act as to when that cause of action accrues and again i can sympathize with counsel and this puts the consumer and a certain situation however that is not at issue in front of you right now we have supreme court decisions that are directly on point that state because of actions against insurance producers accrue opponents of livery of the policy and as your honor talked about it is when they knew or should have known they should have known when they got the policy because they should have read the policy and the crap court does carve out a very minor narrow exception for situations where perhaps there is an instance where an insured may not understand how that is and so having to hire lawyers every time you get an insurance policy is not really appropriate in this situation and i want to point out that in crop it was a homeowner and the situation there sophisticated real estate entity they can read their let's see and see that it says it's covered for personal injury and property damage and set of all rests so you knew or should have known that the policy was not correct at the moment that it was delivered to you so in this situation the policy was delivered an effective on november th two thousand and fifteen that is when the cause of action accrued because they are an insurance producer the cause of action that expired the statute of limitations ran two years later on december th two thousand and seventeen they didn't file suit until october two thousand and eighteen so circumstances basically involving stealing money but that's not alleged here so there was no fiduciary duty whether it's a broker whether it's a captive agent whether it's an insurance agent there's no fiduciary duty owed and  must be to a policy and you knew or should have known that the policy was defective upon to let free or just have any questions i'm happy to answer them no thank you e limited and in the school purse case the are the agents was asked to place coverage including the date as the supreme court didn't coopt that cause of action would have been barred and the dismissal of all lawsuit would have been affirmed by the supreme court whereas in scope produce the supreme court remanded the case to the trial court they reversed the dismissal of the wasit and remit of the case to the trial court for further proceedings to determine whether or lesser sexercise to ordinary care so we have two divergent opinions and the crop decision is a literal opinion and i acknowledge that the crop case did raise specifically the issue of when the cause of action accrued but i would decision to crop because in next case florida was a captive agent and i respectfully submit that if the supreme court was confronted with the same facts as existed in this