minutes of and keeping an eye on the clock here which might be difficult for me the the trial court as you know in this case and very able judge i've known him all of his life he's a terrific judge in my view committed error he basically concluded after reversing himself really twice but twice before and other related motion motions including this one which was granted on a motion for reconsideration concluded basically that the appraisal mind but he did he basically concluded at the end that all things are all things are resolved by that appraisal but if you just read the appraisal clause itself which i'm sure you're aware of the laws probably better than me is that these appraisal clauses just like what it states and that is it is it is it is to determine the loss ok and the last would be expressed in want a loss law says the law says it rest in terms of what what items what is physically damaged in the approach in the incident itself  fuselage or something like that yes if you would bear with me this was coming later maybe in my argument but the case went quite a long way in pretrial and so there were expert reports submitted by both sides  under under rule twenty twenty six they submitted an expert report that expert report is set forth in the record you take a look on pages six twenty four and then it goes on for a number of pages but if you look at pa six twenty four starting on page six twenty four and go for a number of pages through there you will see that their expert mr byrd did exactly what the appraiser was supposed to do this expert report identified in syria out of fashion on a list  exactly all of the pieces and parts that were damaged you know for example i'm just going to read parts of it was reproduced in my brief but most of it was not but your but your expert did your expert your expert came up with numbers well why did your expert come up with numbers if that's not what he was supposed to but i'll tell you why your honor it was a dilemma really on our part why we came up with numbers we did not believe that but we also did not want to now want to foreclose any options or opportunities we made very clear as i pointed out in my brief that we have just we did not think that this was part of the appraisal process at all but nonetheless out of precaution in order not not not to be defaulted out for failing to have done so we did puts we amount connotes you know coming up with a number does not state an amount well i think what you're what you're doing your honors is avoiding the actual definition set forth in the policy no because the because the  up with a number again what i don't agree what i'm saying is in my view i would read that differently in other words there as well how would you read it last equals physical damage which is also a defined term they say physical damage equals physical loss the emphasis in both of those cases and throughout the throughout this term the policy is the physical the physicality of the of the of the concept it's the physical laws your it's a physical damage under your view the neutral appraiser would get designated the he would then resolve the conflict between the two appraisers chosen by the parties and they were to come up with just a list of parts that need to be repaired which he did by the way and then and then how do we determine and how do we determine whether whether it's a total loss or whether i mean whether it's repairable or not under the policy who then who then has to value the parts and labor the same as you go to aruba fair shop and get your card on you would go to an engineer you go to the you go to the repair shop and they give you the actual step i guess i'll grant you that you've gotten partway there by at least determining which parts need to be repaired but then you're going to have about this whole secondary battle over who's repair shop is going to go i mean this is one thing we take it to we take we get cars we get two different estimates on cars all the labor and all the yeah yeah at that point you know there's no mechanism for resolving that and almost inevitably with the you know three and a half million dollar airplane you're going to end up in what you're going to end up in litigation and that seems to just make the appraisal just really a very superficial step it just seems to make it be really sort of not that is the way it was written no your honor we did not write it they they they wrote it and i also pointed out to you in my brief that there's what was suggesting is that as the district court thought that the appraisal might have might have more teeth and would and is a little more common sense approach to the whole thing and he is a very common sensical judge but i do that but i do think i've also wanted to get to and i only have a few minutes left i do want to reserve something the other critical issue in this case which is not that one but it's also the constructive total loss and that is regardless of whether or not out of the funding term right it is not a term that in itself is not a defined term and while even why should we even bother with the term that the parties want to argue about that isn't even in the policy well because the opponents because the response in this case have it have admitted and it's also part of the common law and it's also common sensical when the judge fixed on this as well a common sensical judge is that what's the point of doing a bunch of repairs of after you get them if after you get a repair on the sixty year old aircraft the f a a says it cannot be recertified right that that was part of that was part of the argument over over the nature of the appraisal whether it could whether it could be certified or not there were other questions that is what what kind of deterioration had the plane suffered before it had the accident what have you done since that had been was it in a hangar was it not in a hangar you know is a or the the finest deteriorating for all of that was excluded from the appraisal two but those are legitimate costs  you know there's trial judge originally admitted that he didn't think the appraisals were doing at first until you reach the other question first is what's the point of spending all the money on these repairs on a sixty year old aircraft sustaining this kind of damage if in point of fact you cannot get this careful is never going to fly again because going to be recertified that way that was the essential question and then they have admitted regardless of whether it's in the policy or not it's also part of the common law and it's also common sensical if as a the of the occurrence the stresses and damage to the aircraft are such that it would not be recertified by the f a a that it's a total loss so they've admitted that right but the total loss may not be attributable to the accident may or may not be but that's not for the appraiser to decide that's my point that that the president get to decide that because that's not in the principle of you just pointed out yourself it's nowhere in the policy it's not in the policy it's not in the appraisal clause itself if it's not in the decide it because they only get to decide what is expressively given to them they weren't given that issue total loss and the judge agreed with me right up front he agreed with me a second time when they denied their motion for summary judgment then for whatever reason and the frankly i think i just got tired of the case he said i good morning your honor may it please the court my name is keith yamaguchi on behalf of a poly star indemnity in liability company i will be addressing those issues on appeal in support of the district court summary judgment a breach of contract claim relief i do you have do you have an arrangement mr kaplan on dividing your time i do and i'll be very mindful of that mr kaplan when you are you are responsible for managing that time understood understood  in response to councils argument i would just like to make a couple brief points the first is that the district court did not air and finding that the parties are bound by the neutral umpires determination of the amount of loss the appraisal provision in the policy can be invoked as it was in this case when there is a dispute as to the amount of loss the dispute regarding the amount of loss in this case from the beginning has always been about the two components needed to resolve a covered property damage claim number one the assessment of the physical damage which in this case was to an aircraft as a result of a wheel up landing and number two the cost to repair that damage from the beginning mend in air and star exchange information about physical damage and cost to repair they could not agree as to the amount of loss the appraisal conducted in this case did exactly what it was supposed to do it resolve the disagreement on the amount of loss used in the process bargain for an agreed to by the parties in which independent aircraft appraisers for both men then and star provided information regarding the damage to the aircraft and the cost to repair that damage to a neutral empire selected and agreed upon by the two independent aircraft practical sense on what an insurance policy is what type of contract what is posed to do providing coverage an indemnity the only interpretation of the amount of loss use in the appraisal provision is for that to include a cost repair of some type of value figure so we can bring a resolution to the dispute and in the context of an insurance policy appraisal provision interpret any amount of loss to be limited to soley a determination of the physical damage incurred as men than there argues makes no practical sense it's unsupported by the case law that we've cited in our brief and it defeats the fundamental purpose of the appraisal provision to resolve the dispute about the amount of loss so that the claim can be paid i'll note that with regard to the policy i'm in an argues that physical damage means physical loss  and therefore loss means physical loss but that is not what the plain language of the policy states under the policy physical damage is defined and it means direct and accidental physical loss of or damage to the aircraft here an after called loss but those not include loss of use or any residual depreciation or diminution in value after repairs have been made and i would submit that if physical damage was limited to mean only physical losses mindon there argues then there would be no need for the policy to specify as it does that the meaning of physical damage specifically it's excludes loss of use residual depreciation and diminution in value all of which are concepts associated with monetary value and not pure physical damage and without instructions from the the attorneys the append independent aircraft and the neutral umpires determine the amount of loss in this matter in terms of a monetary value cost to repair because such a determination is the only one that makes any sense millionaire is simply unhappy with the determination by the neutral umpire because one point eight million dollars the amount of lost determination in millionaires view was less than the insured value of tanker fifty five but this is not a basis to disregard the appraisal determination it please the court mr peterson your honors i'm here to address the bad faith issue in the case and i know mr peterson didn't get a chance to address it during his oral argument but i think if your honour's  reading the brief you will see that men didn't concedes in its brief that if this court accept the notion that it was the appraiser's role to determine the amount of loss the cost to repair the damage and if in fact we accept that number the appraiser then there is no issue of bad faith in the case they can see that in their brief they say although mindon also appeals from the trial court summary judgment for bad faith claims handling with respect sql aim for total loss and constructive total loss mindon concedes that this issue turns on the court's resolution of the first two questions if this court concludes that the appraisal provision in the policy delegated to appraisal the determination of total loss and construct of total loss and further that total loss and constructive total loss were in fact termonde in the appraisal the district court's decision and bad faith should be a so then what is the rest of your argument the rest of your argument is if the court disagrees store the interpretation of the gun then what should happen to the well then i think you have to look at the process that star went through to adjust this crime let's let's assume hypothetically the neutral umpire came back and calculated cost to repair above three point four million dollars then we'd have a situation where the neutral umpire agreed with minton that in and of itself wouldn't mean that star acted in bad faith you'd still have to see evidence in the record that starr knew  aware that this was a total loss that the cost to repair this airplane was beyond three point four million and there's a there's no evidence in the record to even suggest that starr ever was aware of that they they couldn't have been because m continued to frustrate starr's effort to get at the bottom line in terms of whether there was structural damage to the wing men didn't continue to promise that it would conduct this internal inspection it never did the ball was in mindon court that mindon understood it needed to provide the information to move things forward and it never did but i guess the overall point is that i'm two grounds there is clearly no issue of fact upon which a reasonable jury could find that starr committed bad faith one is the fact that the neutral umpire confirms starr's position that this wasn't a total loss so there's no way a jury could say starr acted in bad faith in resisting the total loss claim it has been agreed by the neutral umpire that it was not that the cost to repair was only one point eight million on an aircraft that had a total insured value of three point four million but secondly even if the neutral umpire hadn't agreed that this was not a total loss that wouldn't mean in and of itself that star acted in bad faith there would still need to be evidence in the record that starr had information to support the notion that this was a cost of repair in excess of three point four million dollars and there's absolutely nothing in the record to suggest that starr never was provided with the internal inspection from an appraiser had the authority to determine the amount of the loss and that meant a dollar number then there cannot be a bad faith issue because stars position throughout was consistent with what the neutral umpire concluded could there be a bad again we believe based on the record there is no issue of fact upon which a reasonable jury could make that determination the schumacher case which we cite in our brief points out that there's really a different standard between bad faith and whether or not and sure acted negligently during the claims handling process but we think it's indisputable that all periods mindon was the one who had promised to provide the information and didn't provide it and that when mindon when it became clear to starr that mindon wasn't going to provide the information starr went through simple steps it contacted the only other vendor that flew this particular type of aircraft and asked them to review the very generalized cost estimate that mindon had provided it and that entity neptun claim that this is very excessive star then hired a jim everett to review a structural engineer to review all of this data he concluded it was excessive it wasn't supported there was a gross number of labor hours that mindon had submitted over eight thousand which they now ever broke down never explained how they came to that number and starr again reacts to that by having a laser alignment study which which confirmed that there was no structural damage to the wing so at every step of the way when starr was asking for information that mindon had promised to provide not only did min did not provide it but then starr went the extra step and did everything reasonable to try to get to the answer on its own and everything it did confirm to starr that the submission was excessive and there was no evidence to support that this was a three point four million dollar repair job  from the very beginning mindon air believed as we've been accused of that this aircraft is not going to be restored to or where they stand us looking at this from a common sense of a point of view of this mom and pop operation has a very old aircraft sixty years old a refurbished world war two aircraft modified to fight fires there's a reason why this is a valued policy and a repair policy like you might have on your car this is in the records in my br say they're told look if something happens to your aircrafts or is this a really old aircraft it's not going to fly again probably not in fly again they're in the firefighting business they need to replace that aircraft that's their only one of their only few income producing products or pieces of equipment you need to replace this aircraft it's going to take you three point four million to replace this aircraft to get another aircraft that's why this is a value policy so they buy this policy for three point four million knowing that they're going to have that money available if something happens to their aircraft and it can't be recertified well lo and behold that's exactly what happens it's a severe impact nine point five times g s one point five times the weight of the aircraft there d e r in another directions and tells appraiser's determination is correct that you know the loss was around one point eight million and you're correct that in effect the plane was a total loss the difference could come from factors other than that wheels up landing right it could get out of that also your honor what's in the record on that the as to the clause in the record what's what's in what's read this to you this is out of their brief this is out of their brief now mindon argues that the umpire stated is beyond the scope of the appraisal to determine the maintenance inspections overhauls required to restore the tanker to airworthy status this is true that is why the neutral umpire could not and did not opine on whether tanker fifty five could be rendered error worthy they did not made no determination the umpire in their own admission made no determination their whether this aircraft is airworthy we have two expert reports two experts said it doesn't matter the judge agreed with me in the beginning why are we doing this it doesn't matter it's not going to be certified as airworthy that's why they bought this three point four million dollars policy that's what exactly happened to that it is that part of your argument about constructive loss it is your honor that was the second part of the argument and there's no and i'm not making this up this is not something that some lawyer dreamed up this is part of the law the common law it's right in the couch common law is constructed construct the law and the question is though where that common law concept is incorporated into the ball see well which had a very specific definition and i don't know if it's incorporated into the policy is not in the policy but it is in the common law and i once again point out to you point out you know what does that mean if it's in the current common law regardless of whether the policy provides for years still intitled to the protection that yes i'm provided for the boss that's why they bought the value policy or are they really these insurers these insurers buy this policy on the representation of something seriously as to the aircraft needs to be replaced it's going to take three point four million to replace it that's their reasonable expectation that's what happened then the bad faith comes in because they never gave any credence never looked at that issue not even once it's a total loss it again i point out to you the the respondents themselves that if the aircraft cannot obtain airworthy state search certification as a result of something happening to this accident it is a total loss and there's there's the conditional that you can issue if it would if it if the if it's a total loss of it can be recertified because of something that occurred in the accident yes and yes it is a loss if it if it can't be certified because of something else that is not related to the accident then that's not the insurers of the mother bring you bring you back to the beginning your honor and that is is fact question isn't that a fact question if it is a fact question then they don't get the appraiser doesn't get to decide it may well be a fact question but then this comes back to the original point that you argued which is was this to be decided by the appraiser or not is that what the contract provided for or  this to be there or to some there is no possible way to construe this appraisal clause to include a determination of a constructive total loss it is linguistically it is intellectually impossible because an insured is it reasonable is it reasonable for an insurer say hey we bought this policy by the way because of this accident i'm making this assumption because this action is cannot be recertified is airworthy it can fly again we're going to repair it again but it ain't ever going to fly again so i'm sorry but you don't get your three point four million is that or is that is that a reasonable expectation of the insured no that's why they bought this insured policy for three point four million it's it's not there is no set definition of that's why the grid constructive is in their ear action which is a fact question it has to be a total loss and they have conceded that point and that is my point that that and that is outside the scope of the appraisal and has to be and they've admitted that in their brief to that was not determined ok ms i think that we