was awarded a very specific award the overtrain panel awarded him all of his claims for all of his all this corn claims in whole action and not wake county similarly the panel alleging that claiming that because the award was not specifically stated as a damage award for each county that it did not cases we've been hearing there has been arguments about facts about facts the fact this one is strictly illegal that said the first thing i'm going to tell you is facts these are undisputed facts and i think that they're very important there is no dispute on the award there is no dispute on the amount there is no dispute that mr russell proved insurable loss all his corn claims missouri knows what me ask you how many claims were originally filed and were they collapsed into one claimant can you explain that sure and that is is is something i do want to talk about they were if you look at the record i going to punt on them on the exact number of units there were the way prop insurance works is you can insure all your farms in one county or you can specify each individual are originally this was specified are now what happened was when great american denied his they collapsed all of them into one for one of their reasons for denial which was that he failure to maintain adequate record when you say collapse into honest hard in right but that you mean one claim yes if you if five thirty six of the appendix they specifically state that great american classic all of his claims into one sort of follow up and judge question then when when the regulation requires the r v trader to provide a written statement describing the issues and then breaking down i claim the award for any award but we where do we look to for claim are we talking about the collapse claim that great american identified or you as you mention early in your argument there were multiple claims that claim for the corn on each county each of the three counties where when we look to break down my claim where do we look for for that certainly it is a matter of some an interpretation and i know council doesn't like that word but when they addressed his claim at the outset when addressing it they collapsed all of the all of his claims into one for the purposes of denying his claim on the basis that he did not maintain adequate records in terms of the provision of evidence to be the panel multiple claims understood in terms of the collapse i think that the actions of the great american collapsing this into one claim makes it one claim and so if that is the approach then the analysis is over the analysts specifically did what the policy requires however in the alternative i think th with policy requires even if they did it on a county by county base because if you look at what the policy requires it says you have to see the amount the basis for the award and a breakdown by claim all of those were done here on a claim that submitted by mr russell to the piano and is it in the record is it that all the parties have that it was not invited the simple truth of this  and i think this is very important because what we're talking about here is a situation where the district court made a finding that the award was not specific and not definite simply because they threw everything into a final number this is very very simple is not the right word but very easily calculated there's not a dispute about it but they didn't i mean a minute ago i thought you just said that the claim how could you ever break it down and wouldn't the regulation be kind of nonsensical no for example if he had proved say for example he'd proved his claim on only one of all then i think it would be required to say you prove it on this one farm your damages in this case we have a claim that was broken by a great american into one and the panel awarded one so it it doesn't make it nonsensical because there are these kind of layers and what happens is is they can be collapsed together ok i think what you said initially is that when they initially denied the claim they broke it down are they they lumped into one claim did they do anything to lead the arbitrator to treated as one claim did great american i am i not to my recollection no however when you're treating something it as as one claim for the purposes of the outset when you deny it providing evidence or that one claim seems the logical way to to approach it so the otherness who was presented i assume by you it was was not on a county by county basis it was not it was simply it was broken down between corn and soybean claims and it was presented as the overall l and in terms of the analysis on this you know this is far from a non definite nonspecific award both parties are agreed that this is simply a matter of going through making these calculations and you could break it out if you want and that's why we're we're raising the issue of the court area not either fixing the award of it thanks it's except the ripper the regulation says that the arbitration panel is finding his nullify right so how can the district court go back and do it even though it might be an easy thing to do doesn't the regulation say it's nala fine well in terms of that i think you're getting into the area of did they i think you're making the assumption that the award doesn't imply which you don't seed obviously but if it is a situation where the of a did comply there'd be no need to break it down obvious and obviously that's that's where we're coming from from the outset arises they broke it down into one that's a simple later in terms of saying this is not definite they did break it down they did say that the basis for the award is broken down to all foreign claims count what the regulation doesn't say is you have to ascribe the damages specifically to the city county and i think what you're looking at is a worst case scenario on arafat because let's are the policies issued by county so if there are separate policy for each county in again this is a you're asking harder question and then you think yeah says so there was like fifty five ok so if there's different policies then there have to be different claims under each one right we're not on a one policy the numbers three counties all of them are identical one policy yes it is how it happened here yes you can you can start out with your fifty and you know if for example great american said you didn't keep adequate records therefore we're counties or do we have one two three policies each covering a county or some other system you have some other system you have a situation where you these properties were originally sure insured into these fifty five sixty separate units into one larger and that's what was done in the issue one policy and it's well the policy is verbatim you know come on there is either one policy or there is one policy per unit which is it there is one policy per unit however then you have to have separate claims under each policy right knows because they were close together only at the time that a claim was made that your argument that's correct i'm going to know take the claim out of it ok before there was ever a claim one policy covering all the units are one policy per unit there's one policy per that's what i needed an that is the reason for that be to prevent a situation where a farmer doesn't keep good records and they attribute too much yield to one unit rather than the other and so the insurance companies those rules going to treated as one to and others that have lower production decisions on all those without going too far down a rabbit hole that is good afternoon your owners may please the court my name is tom james i'm here representing great american insurance company and with all due respect to my colleague much of what he had to say about units and corrected i'll explain my presentation here i'd like to take the panel through a few things here first of all a bit of background about the crop insurance program crop want to one if if we would that's helpful to the panel here some background on the dispute why this isn't a typical federal arbitration act case and that really doesn't decide the issues like it typically would with an arbitration the problems with the award and discussion of award notification and what that means under the federal crop insurance programs scheme that they put in place which does have a coherent design although often it appears not frankly because it's it's a confusing program in many ways so first of all here the courts faced with an arbitration award that doesn't meet the minimum award specifications of the government imposed arbitration requirement between the parties that binds them here but the terms of that agreement it's automatically rendered in the district court correctly determined that after taking a look at at the issue determine they were doesn't but on the because the panel did the arbitrator panel didn't do its job and the parties have to start over from square one as the court noted in its supplemental award after mr russell moved for reconsideration as to that this court should up hold the district court's decision now how do we get here mr russell bought federal crop insurance policies chloral from great american insurance company the policies are part of a federal program through which the policy terms are written and issued by the federal crop insurance corporation which is a wholly owned government corporation empowered by congress issue crop insurance policies it's managed by the u s d a risk management agency and it's under the umbrella of u s d a this all goes back to the federal crop insurance act from the one nine hundred thirty s it was the new deal program sorts been in place ever or over the years it's been privatized in terms of its delivery in the one nine hundred eighty s and one nine hundred ninety s the government shifted from issuing policies directly to contracting with private insurance companies known as approved insurance providers or a s for short who are required to strictly follow the rules that the government sets in these policies and the last adjustment procedures the the purpose is to promote promote the general welfare of agriculture in the country and to ensure consistent delivery of these benefits the farmers the policy terms and the regulations related to them preempts contrary state law they they cut through traditional rules of insurance although this is called federal crop insurance in many ways it's not insurance it's a benefit program for farmers delivered as an insurance policy for which the federal government typically subsidizes about half the premium each farmer and subsidizes the insurance companies participating in the program as well there's a huge regulatory framework in place much of it is in seven c f r part four hundred the policies that typically controller and seven c f r part for fifty seven the policy terms are divided up into multiple sets of forms which are they turn into a telephone book worth of forms that times the basic provisions generally provide the provisions that control those are about thirty six pages i think are in the timeframe of this claim their crop provisions which are typically four to six pages and then there are county specific provisions and counties to set the actuarial provisions that the government issues every policy is by county and crop policies don't cross county lines so if i go to the government i'm a farmer and i've farms in three counties and i've got two different crops i want to involve all all of those cover six policy i'm going to get six different policies now administratively the company that issues them will group them together typically in a single set of forms and spell out a county an underage policy some of the companies will even issue a unified policy number on the company side as to that coverage but the definition in the regulation that imposes the policy terms and in the policy terms makes it explicitly clear that each crop county combination is a separate policy and is handled separately in the unit collapse that is apparently an issue now in this case which wasn't an subdivisions of the county in other words and mr russell when he farmed cross section lines to section township range lines that geographically divide as part of the country well under the policy you're not supposed to do that because individual units don't cross section lines so the company collapsed is the term the units to convert it to what's known as an enterprise is a county wide unit it's the biggest kind of unit you can get there's no such thing as a state wide nothing in the policy that provides that because the policy limits it to a perk county basis the largest you can get is enterprise within that enterprise unit and within that exhibit k that your honor mentioned which was provided to the farmer builds up a history of production of a particular crop in a particular place and that forms an average a baseline affectively there's a math applied to that or coverage levels and times and other things but basically that's the baseline and that's where losses are measured against so you've got you're up to ten years of history if it gives you a number that's a one hundred bushels of breaker of something for a nice round number and in that year you produce ninety bushels per acre that ten bushel gap is the loss if you produce terms units versus claims any disagreement of the policy holder has with any determination the company makes must go through arbitration and the company determined that none of the claims under any of the units were payable because it didn't believe that the losses were due to natural causes if there were losses at all the policies only cover specified perils which are natural causes the government and congress in the ac one denial or multiple denials there was believe there's one denial letter which covered all of the policies because one denial why couldn't they arbitrate one claim it was all arbitrate sorry arbitrated together in one hearing but the components of the program those units and the edge of individual claims within it are still how any losses have to be determined and paid but again that goes back to my question the the policy requires great american to settle claims on a but i don't see anything that says you have to arbitrate it on a permanent basis it says claim well the arbitrator is required to apply the policy provisions and regulations and procedures of federal insurance corporation in determining any laws just like but companies are the arbitrator has to follow the same rules the company has a following and can't deviate from no one is authorized to waive anything in the policy including an arbitrator and there's plenty of federal law in that the policy makes that explicit in its preamble seven think that's more a matter of semantics perhaps that there was a single denial letter encompassing all claims under all units under the free or in policies in those three counties they were arbitrated together because that's just how it's typically done frankly and for reasons of efficiency and economy it doesn't make sense to do otherwise mr russell farmed all of those operations together as well but for insurance purposes under the rules the government set their compartmentalise to by county and by unit the unit in one of the counties having been semantics i don't think they were defining it i mean if i may and i think we can say something but you've also told us we have to really look carefully to these regulations and that you have to strictly here so i'm not sure that the answer of semantics helps us a whole lot in parties decided that mattered afterward anyway they put it in the or that way however they don't have legal authority to interpret the policy or any defined term within it and claim as a defined terms of that they could call it bob if they don't and you've talked about the policy  have a policy it and it's actually not in the record in its entirety however it is federal law because it is seven c f r or fifty seven point that is the paul it's the regulator that is the policy yes so it is law the crop provisions are in another part a part for fifty seven there's nothing in issue from them but that they're in there as well i think we've cited in our brief they are found let me ask you wasn't there not an opportunity to object before the arbitration panel in other words didn't mr ryan present a lump sum number and shouldn't the argument have been been made that you need to do it per unit in fact the argument was made that it needed to be done the arbitrator's account for that a bit and they were awarded when they note that there was testimony from an expert witness that mr russell side provided or he came up with his one point four three three point zero eight million whatever number he came up with the arbitrator panel noted that great american disagreed with that number and proposed that the panel issue an interim award instead which is exactly what great american proposed from the outset these are complicated calculations that go into determining a crop insurance loss and getting it done correctly under the procedures right americans view is that number is wrong and nothing is due however if the panel makes findings that by unit and even by individual line item within the units to present that to the panel as a final award doing the math for them that was very complicated math and that is why that exhibit k i'm sorry strike that the parties also discuss this in their finding fact that they proposed to the panel afterward the panel said no we don't need to do the math that guy said it's a million for thirty three we'll go with that number that's what they did so we did object we did offer the opportunity will math we'll be able to find that in the record your objection and offer to run the numbers and that kind of thing it is noted it in the district court record it's noted i believe the district court discusses it in its brief as well but the district court as a matter of fact did make findings in it decision on the motion to set aside the award it found that there were did not contain the essential components it needed to gain and i believe it found great american objective as well but in the arbitrator award challenge the calculation or offer a different calculation and said great american requested that the panel in the event of an award for climate enter only an interim award which requested here by denied there was a briefing which actually made that a lot more explicit and i guess that's my question is that briefing it may be on the record is let me ask in the end does this assuming there's liability here is this just a waste of time to send it back and break down by unit or is this does this have some actual effect on what could happen it does have an effect and or is this just another bite at the apple in terms of we want to relate a gate liability well it's not just that but the fact that the arbitrator's issue is such a lengthy award making what seem to be particular findings and didn't didn't follow the rules in the end calls it does call into question what they did and that's part of the the coherent scheme as i described it that f c c has put in place is to arbitration they require this arbitration process to resolve disputes however they also require that nobody waive the terms and everybody defer to their interpretations and they don't they say arbitrators can't interpret the policy that also  that was something else before the just recorded decided it didn't have to decide but they've issued a series of final agency determinations under their authority to issue where known as fads colloquially which bind everyone in the crop insurance program and sees as they even by courts as well an arbitrator they've said arbitrators can't even decide things wrong seems a bit counter to what the f a a would typically say you can't contest the underlying parts of what the arbitrator says but in a fad two thirty for example which is in the record they specifically say  arbitrator can't interpret it wrong and if if he or she does or they do you've got to go back and fix it and and that's why they've set up this i said it's insurance but on insurance it's also arbitration but not arbitration in many ways because of the process  have set up where they still keep their their fingers controlling what's going on among the parties for these decisions they don't want to have to decide it themselves like with the program itself they've farmed it out to private arbitration essentially but all these rules still apply and so this matters because they want to make sure that everybody follows all the program rules because they're subsidized government money at stake here they've imposed these rules with this complex system there they're aware of the danger of inconsistent decisions from arbitrators and i'm not following the rules and just saying looks like there's a big loss let's pay the guys something they want all the i's dotted in the t s crossed here because of that they substantially revised the policy terms to put in this current arbitration provision back in the terms of active in two thousand and five and the regulatory comment as to that which i don't think is in the record but they noted to their horror arbitrators weren't following the rules they decided they had to do something that turned into a very very long arbitration clause in the policy which is sort of arbitration and sort of not they've limited the liability as to what arbitrators can award or even court's going toward if if a company makes an error and at the policy unless it's essentially intentional and cause policyholder to lose something he's otherwise entitled to no one can get damages from a company they can't get attorney's fees from a company it's part of the bargain for getting half your insurance premium paid by uncle sam you've got to follow all these rules and so yes we have to go back and start from square one because anil did it wrong it may be indicative of them not following other processes correctly either there are other problems with the award that great american raised with the district court concerning interpretations they made as well and if the panel were in fact to overturn the district court's decision here as to the order not containing the central pound in a need for being an elegy we still have that interpretation to do all history so i'd assume it would have to go back to the district court for that to be resolved as well and that's a second nullification factor from an independent clause in the policy as to that so that's where we'd end up dividends your question your honor really ok there are other problems with the word as i noted there's there's the interpretation problem too that's not before you now write american did raise some of the arguments relating to interpretations in its brief on the other hand which mr  counsel criticized in their reply but the reason being is interpretations matter even as to the things before you now because of the existing interpretations f c c has made such as that to thirty june earlier that's the reason that's and there  the calculations that mr russell intends in his preferred are easily done where you just run the numbers per field by the way if if you if you on the panel would take a look at the different factors in the record there's that exhibit k that you're on a reference earlier at a one eighty seven there's also a eighty eight eighty nine which are calculations mr russell's counsel provided to the district court in a brief both of those are attached to their briefings let me ask you about that exhibit kase in our record the arbitration panel referenced all three counties so obviously they had something what did they have testimony of from ron miller with two eyes who i i or who provided those numbers and said he had done the calculations but he presented no documents no individual breakdowns or any sort annele and none of that was taken record and if you look at the numbers provided by the two parties to the district where they're different and they're both different from the number of the arbitration panel came up with as about eight thousand dollars worth of swing between great americans number based on its rough calculations the plaintiff number and the panel's number which is in the middle i don't know how you know that it's but there's no way to back figure that to fit in the boxes of the units in the per line item in the unit and so forth so you can't just run the numbers it's just not that simple nullification is self executing under the policy it's not something a put in place and district work correctly decided that this annele honoree thank you very much your i q mr bush it the opportunity to be here timing of that and when it was raised and whether it was waived well one i don't think they braced at any time and tell when they brought it up from the district court but i think what was particularly telling about that is that in terms of the arguments they didn't present any evidence to to put the panel in another place and and there's a there's a couple of things i'd like to address to your are you you said you know well assuming liability we don't have to assume why that's that is not as  the amount basis for the ward in a breakdown by claim while the amount is one point four three three million the basis for the war is the insurable law shown on all of this plan and the breakdown my claim is all corn crops in peace a recount now that's a very reasonable interpretation of what is required there and it's meant there is no authority the great american can point to that says what panel here did he not comply with that regulation there is nothing that says you and say we find or the plaintive on these individual claims he h know it's the second time you've used the plural claims so it has to be broken down by claim doesn't that and there is plural claims why doesn't have to be broken down but at least more than one well this needed to be broken down among the three b n but when you were doing your summary you said there were claims and you didn't say that's their argument you said there were claims and if it's going to be broken down by claims there has to be more than one right yes there does here we got one number we didn't get a breakdown by claims there is nothing that requires you to break the damages down by claim it does that is that the c f r provisions specifically require that the exact wording of it it says you have to bring vide a written ruling that provides the amounts as the basis for the award and a breakdown by claim well that's the exact words breakdown by cl in terms of the the objection to the panel's ruling that no we're not going to it was it was it clear that that offer give us an interim award and we will then break it down by unit was that pretty clear that that was what they intended to do day or that they offered to the great american great american and requested and all the matter or more of it well ok but to do an interim award and then what what was the purpose of that what did they offer to do that they offered to calculate the damages and then by you know to be honest your hon don't recall of thousands i i don't recall ok well let's assume that they did that sure wouldn't that be enough to put the panel on notice that it needed to be done by unit and the panel just disregarded that well the panel immediately said council we think we can we can award damage and and there was no objection or follow up so i would be reluctant to say that