case should be remanded for trial before we get into the specifics of that though it's important to keep in mind two things that are undisputed in this case was really a framework for understanding that what in a compensable claim it's also one disputed that it took more than five months for him to receive his benefits under the worker's compensation policy the evidence in the summary judgment record i unusual i was trying to see what the well the usual time friends are because the argument is that the delays were and reasonable so i was trying to understand what in the record shows us what reasonable reasonable timeframes for the various steps in the process well there's a step there's a statutory deadline for that for the initial determination compensable compatibility determination to be made of twenty one twenty one days after which you are deemed to be required to pay right right and that's only if the person misses seven days of work so it actually wasn't applicable piet's terms in this case but the insurance december sixth and so in this instance we have this we have this initial delay we have the the additional part of the statutory period have any evidence that that initial delay that eight days of opening the file was unusual because it seems like if berkshire had had an easier time contacting people the eight days wouldn't have made a difference they still could have gotten an answer maybe in twenty one days that just didn't end up playing out that way well i think  attorney so so it seems like they were there were various steps along the way where the insurance company was prevented from moving as quickly as they wanted and i  the facts on the summary judgment record would entitle us to summary judgment oh we're looking at whether there is a genuine s g of material fact as to whether the insurance company was unreasonable because it just records and as a matter of law it was not so we're trying to understand the the insurance company had a obligation to make an initial determination and to do it within that within the time frame there is there are disputes about whether my client participated or his conduct can be it wasn't necessarily consistent with a traumatic injury so they had some very and they didn't have information from mr roman so they had some very ambiguous information so was was it unreasonable at the at point  supplement the second we can find it but but i guess the the point is that they could have done things that would have vance this also this is a sort of a common trope that we see in these cases where is there reason to think that the i c a had more information than it had given because it had sent along part of the claim including an incorrect contact information address so i'm just wondering whether berkshire should have assumed that the i c a had more detail that would have been accurate they would have it would have given them additional leads so that they could have followed up and got more information if you don't know that i mean do we know that the i c a usually in this industry keep some information and send the only part of the information i know i i'm not i'm not suggesting that you are what i'm what i'm suggesting is that the information they if they had contracted the n c a for as far as medical records and for his information it could have did he have ongoing treatment at that was not covered at that point i thought i thought it was already returned to work he was returned to work but he had there hadn't been any kind of investor he had asked to go to a doctor and they had denied it in fact that that is there we have dr epstein in the record says that that decision to deny him the ability to go to a doctor was unconscionable so w didn't i i guess i didn't see then the record what exactly are you referring to because at that point they were following up with the medical providers we can then arrowhead but i didn't see anything in the record but i guess the point is your honor that when you have a when you have a company that is engaged in this process is not giving you equal treatment to its insured and we also know this because two what the adjuster says is hey we've got these records it helps our case which again shows that the at this point they're no longer investigating whether he actually has medical claims they're looking to find reasons to support their denial which is consistent with their denial protocol and i ask you a question about the denial itself so the form says two different things it says denied and then it says but you need more information  and there's going to be a continuing investigation did your client ever even receive that if we called a denial because i couldn't figure out from the record whether it went to him at all or whether just want i believe he has notice of it but i couldn't tell you that you're on or off the top of my head because it seems like part of your claim if i understand it correctly is that he has emotional distress from the intervening time period when it was denied and when it was eventually granted but if he never knew it w that counsel said i would like to kind of keep the conversation going at that point i think it's very i think it's very telling that he says that i don't think there were any records that have been provided at that point in fact plaintiff did not gather his own medical records as was clear in the record below and december sixteenth his own counsel is saying berkshire hathaway home insurance company i will get you the records you know after i have them so what an undertaking to get them yet so it would have been impossible to make a reasoned coverage determination by the time of december six that just wasn't something that could reasonably occur and as to counsel's opening remark he says well there was a five month away from the time of the inception of injury until benefits were provided but of course we break down that period ten weeks that that was mr rolling not reporting and was the at least schippers west as was alluded to but he does rule commission had that information did it not they had the bare assertion that an injury had occurred shorn of any medical records short of any substantiation which then required the insurer to substantiate it through proper investigation  even though the adjust that easily could have obtained the claim form from the industrial commission it would just happy to have articulated the nature and circumstances of the injury the just did not attempt to do so why is that not let me ask you some additional questions i want to get the timeframes down clearly here because the record is well over the place i think tell me this is correct that there were eight business days between the notice of claim which was  fourteen and the assignment to the claims examine to which was that ended twenty fifth and that's not explained why there was that delay do you think that there's anything about it that we should be concerned about in a let's just walk i 'd like to focus on that first of all if you assume that it was instantaneously transmitted on the fourteenth to our client then it would have been seven business days it was in fact u s mail the date of receipt is not clear it was probably three or four business days assuming it arrived the following monday the eighteenth because it was sent on thursday the fourteenth that gets the money the eighteenth i would think normal assumption two business days so on the twenty second our office handed it to the adjuster on the twenty fifth the named claims examiner profession is looking at it so i don't think for business days rings judge wake was entitle to think that four days for business days or so is not unreasonable but in fact whereas we see here the documents necessary to sustain the claim took ten days to obtain from the earlier providing treating and eddie and then weeks after six diligent follow ups from our side to obtain that as well we just couldn't have obtained the information even if you know what would have been necessary is for the physicians who were in involved the treating to be obtainable through the kinds of information we only got in december sixth we didn't even have the ability to contact the treaters till december sixth if i may let me move forward i also had jotted down the deal with ten business days between the assignment of that claim on and then the twenty fifth and contact with roman which was december sixth and no attempt to obtain contact from the is that correct or not that's also not correct judge because on the twenty fifth that's the monday of thanksgiving week and there were attempts i think contacting the employer which is the only way to get his direct information is an attempt to contact roman there were four such attempts made but in any event it wasn't ten business days it was about six or seven business days allowing for the thanksgiving holiday but the faith to contact the i see the i c had provided the only information that had which was the claim form there was no further information so the idea that of the just the didn't even know about that because no contact was made whatsoever correct that no further contact was made aside from receiving the information the i c a had the i say i see as a matter of fact had no such information so it could not exceed negligence the field to obtain information that did not exist i think i have had it thought everything i thought there was something that it had that it hadn't sent it had no medical records which was what was necessary to determine the claim and which is on january third said this is seemed to be the explanation as to why it was that lengthy period of time the records request was pending with arrowhead there were six requests i thought they were distributed more normally across the six week period but arrowhead was very consistent in indicating that it could not provide the records instantly when contacted and in fact they waited from the time of your honor's indicated contact for for the weeks for further weeks excuse me before the records were supplied so again where arizona law says mere negligence is not actionable is bad faith it has to be super negligent has to be worse than above negligence where the information is not there or not attainable yes around i guess the ultimate question that a messy with is that isn't this all for a jury to sort out these facts these timelines the explanation is the lack of explanations and what transpired during this into reg them it just seems that that's a factual basis type of concern and i would say judge lock respectfully no there's no issue of fact here as to there being worse than negligent behavior because it's a combination of the summary judgment standard in the requirement that the behavior be worse than negligent that it be sort of advertently mistreatment then jury could draw inferences from the evidence i suspect just seems that this is just pregnant with jury issues what europe your honor i guess we think judge lake decided this correctly for a number of reasons as far as the delay in the investigation i mean there was no ability to talk to roman when roman was spoken to his employer said you know first they didn't have the information for rome and we couldn't even reach them through a ship or a ship which puts us on hold for half an hour won't let us leave voice mails we call four times they won't even talk to us it's really hard to see how that process and that time interval can be seen even as negligent much less worse than negligent judge black and aside from that when we finally get to rome and as was pointed out in the colloquy with counsel prior mr roman says i don't want to provide information for that you should talk to my lawyer and that's not so unusual for people to say speak to my lawyer speak to your lawyer is great in america but the negligent behavior and so i'm putting those two things together and it's been that which is behavior it is supra above negligent behavior because the bad faith law in arizona looking at zero issue is that mere negligence in dealing with a claim cannot rise to the level of bad faith and can't be an issue under rule fifty six that there was bad faith i believe what i was that maybe you could tell us why that was effort and as case the information in this case that was necessary to reach the coverage determination was not obtainable and fair debate ability within arizona law judge cuba indicates that it's reasonable to ask for the iommi fair debate ability insulates from a bad faith claim the actions of the insurer when you don't have information sufficient and the information that was alluded to in prior colloquy there was a critical information even when obtained if ordering the i am me was fairly debateable then not even having the information necessary to know that sort of cannot possibly be worse than negligent because we needed to have the information needed to determine whether the injuries work related whether it truly was concussive what the conflict between the different treaters was as far as it is it traumatic they said it's not traumatic for the other one that seems to indicate it is traumatic there's all this equivocation and it cannot be worse than negligent in the absence of that information to not then grant coverage and in fact we subsequently investigate coverage and pay two hundred thousand dollars in benefits to the gentleman so this is not a case of an insurer the trying to shoehorn a denial into the record and i think it's significant to know that ultimately coverage was had the gentleman paid coverage was determined upon the receipt of the necessary and vital information that's what insurers are supposed to do that's why we have the very procedure the gentleman indicated to put into our paces to investigate and then to cover were warranted which we did opposing counsel says the  this actually says twenty one days so by law it's contemplated the insurer would have enough information in twenty one days to deny or allow the claim to go forward and  not even getting contact with the employer made four different attempts over the week and a half could not get in contact with roman roman would not provide the information it can't be the law under this statute even an injured person by basically hiding from being found and not providing information never having gathered medical records though he had counsel topic in prior argument all of that having happened it can't be that we are at fault for simply saying we have to get a pause today to get more information so we can then eventually cover you which is what we did did you ever argue that he was the stopped from making this delay argument because he didn't answer the questions on the phone we did not argue it as a matter of a stop will judge freedom but rather as a matter of fairness that we think that we are we are proud of the fact that we diligently investigate we understand the difficulties here this is a record as i believe was discussed in prior colloquy that tends to reflect a lot of barriers that were barriers that were imposed and you know we don't blame the gentleman for waiting ten days to report ten weeks but he waited ten weeks to report we don't blame him for being out of touch with schippers but he was out of touch why does that all count against us that part goes too far for us i'm still confused about this and maybe you can straight my confusion out there were twenty nine business days between the records request which was december sixth and the follow up call to arrowhead on january so it  might be unclear back that is a d c i don't understand about that just some or six to january third launched twenty nine days before they contacted our it and i think december sixth to january third period of time before they followed up with the call to head in got the medical records respectfully to the premise of the question judge block were already past december six and december sixth is the twenty one day period which we've been discussing in short strokes what about so at this point the question is if we actually need the information to decide about the i m e r we are we reasonably viewed as and worse than negligent because they didn't give us stuff for four weeks and that's just how medical records obtaining works in the culture it took consumer aside from insurance issues have whole separate issues with and when medical records cannot be obtained within two and a half weeks we do not say to the party seeking to obtain them that they could possibly be viewed as per se worse than negligent especially in the christmas season especially when you're not within a twenty one day statutory period that's that's just really taste at universities or troubles be a little bit and there's something in the record that talks about the fact that when the records were obtained some reference said this could help bot case out now and a jury not really consider whether that was reasonable whether there was a sort of a effort by the insurance carried to try to really challenge and contest all of this information that they had sort of the game plan to do that it may not be the case but why would that not be for the jury to wrestle with i appreciate that judge block and i think the issues of timing are the first cluster of issues i've tried to explain why we believe in terms of number of days why that is not reasonably viewed as worse than negligent by a jury at that point then you get to the part between your honor's been discussing that the part after december sixth and toward the time of coverage and again they're fair debate ability is the idea in arizona law if there is an issue of fact as to the fair debate ability as to whether we were trying to explore this then we should have a trial but there is not an issue of fact as to quote fair debate ability because with all the equivocation in the medical records we finally obtained you can clearly see such discrepancies that reasonable minds would differ about the necessity then to cover so is a perfect record absolutely not judge black and i fully take the point of your many questions on that point but arizona law does not hold us to that standard it holds us to negligence an imperfection is not enough for them to have an issue of fact under arizona l thirty one the statement effect sixty two and you are seventy three which is where the exhibit to that particular paragraph is so i had a lot of trouble figuring out it looked like you were citing to your statement of fact which was not undisputed and and i couldn't quite tell then what it was citing so tracing through your citations to actual evidence is very difficult here i take that no your honor i apologize you point us to something in the actual record the actual underlying evidence rather than just a statement of facts like because i think then there's this i'm actually having a little bit of trouble getting my but my i pad here to get get me the page you just said but if i can recall correctly things and it's like exhibit two and things that are hard to figure out what they are right i will so i just i just pointed you to where the exhibit for that for our expert's opinion is at e r seventy three ok here's exhibit a i believe there are two separate is and in this expert report also testimony about the delay in treatment from the the i am e was unconscionable that's from dr epstein that testimony is found at exhibit fifteen your statement of fact which is e r one twelve and again we have a question about the delay and whether or not i was unconscionable and i also appoint the court to our one sixteen for the i c a notice claiming all the medical records that were attached that since that was the discussion at the outset in closing i i think it was important that came out of this in the end it was part of my rich statement which is this case is much about summary judgment should be remanded for a trial for that reason i think it's also enough for the judge to decide with the punitive damages are appropriate it doesn't seem as if they are oh i do think that they are your honor and i think that based on the on the policy itself which has language that says we're going to work to deny to support a denials and the record in this case where the adjuster said i've got i've got evidence that will support our case and the justice choice to hire an investigator when the fact of injury was no longer at issue and hire an attorney as soon as he got the arrowhead report which showed that he was that there was a compensable claim here yet we have continued delay