may proceed thank you your honors and may it please the court my name is mark ayers and along with my partner margolis we represent sinclair wyoming refining company time permitting and such of course questions of course i'll be addressing sinclair's appeal in this matter which concerns the application of wyoming's attorney fees statute and my partner kate will address and in for service cross appeal which concerns the appraisal award  insurance to under one thousand and eighteen to the provisions of chapter fifteen do not apply to a policy that's not been delivered or issued for delivery in wyoming of course this is a state law and as this court has has made clear many times this court's task is to determine as best as possible under the circumstances what the wyoming supreme court would say and that court interprets statutes to reach the most likely and reasonable interpretation given or design in purpose of that's or centrally the goal and we believe that there's really two points that that inform not only the interpretation of what i wanted to but also the application of this court's prior panel rule which of course is now infotech given the issuance of the lexington insurance company decision in february intervening case which is the subject of some twenty eight j twenty j letter hand in fresheners response but those two points which we see as as as core is st that sinclair's interpretation of this language of the delivered taken a very narrow view that language other states have taken a very broad flexible view of that language and we've cited cases two cases from florida from new york from washington from pennsylvania from louisiana and even from the virgin islands that indicate a broad flexible understanding so this is not a minority view it's out there there are many that take this view that that language is really meant to to ensure that that that risks that are you know when an insurance company reaches out and essentially targets a citizen of a state and with with coverage and receives premium payments for that and it's kind of knowingly does so but that insurers going to be which is reasonable subject to that state's insurance insurance code the nd point is that we counseled at least one interpretation yes your hon but by a matter that's actually decided by by a previous panel considered inside raised by the parties but we don't think that that applies here eleven case that actually shared with us not in the brief but i shared it with the opposing not bound by an assumption that is not a place directly at issue by the parties and knowledge nor explicitly decided by the panel what happened in lexington is eleven party essentially says that look at the policies and it was undisputed nobody raised any issue concerning the meaning of the statute it was an undisputed that or at least eleven side said the polish policies were issued and delivered well the primary issue though is that there was no consideration of what of the essential points of the argument as it's as the as the panel went to discuss in the opinion that precision which was the the other party does not address the substance of the argument and merely said well that's out because you raised it it was a waiver response where as so there was no there was no presentation to the panel of what we see as the absolutely essential points that this language just term of art language is language is as as has been acknowledged in many jurisdictions and treatises and so forth this is term of art language there is no discussion and we pulled the briefs i mean there's no doubt there's no raising of any of this in the briefs they're certainly not any discussion that the only of the only on point wyoming state authority that exists and that is the informal opinion from the from the wyoming attorney general's office that expressly adopts the very interpretation that sinclair is advancing here and that has been adopted in many jurisdictions so the panel was not aware of any of that and so is instead simply adopted what the what what the advancing party said is hey they they weren't physically delivered in in texas and so that's it no response and so we don't really believe that that panel discussion of that issue moves moves the ball or is something that has to be bound to because it was without what was absolutely necessary to make such an analysis of a state law especially on  issued to sinclair wyoming how do you it's interesting and certainly intriguing the language that how does that actually fit in was issued for delivery in this day or delivered in well we believe your honor that that demonstrates a very unique and you're right it is very unique language and when i st looked at that i just assumed that this was somewhat boilerplate language and in in the research found i could not find it anywhere i think it is a very unique language if it is it seems to make the intent that is that you have a district court mentioned there's got to be some intent that this be delivered to sinclair and this seems to uniquely demonstrate that this is intent in fact it appears that the parties or the realty insurers or the drafters of this want to foreclose any argument that the policy was not being issued to each of the named insured so in other words it's a language that seeks to avoid this type of hyper technical or formal thing obviously this issue can come up when when you're talking about something's not effective until it's been issued and so forth and they seem to want to avoid that and so we want to avoid that to issue the policy to each named insured but now seem to be turning around to say wait a minute it hasn't really been issued to sinclair wyoming it was only issued to the to the to the to the parent company and that if we're looking for what the intent was and when we're talking about either constructive  delivery which is you know under the tillman case or under the the you know the the arc of the cases that we mention are in our briefing page twenty five dollars which are several that talk about the notion of constructive delivery or if you're just talking about the notion of issued for delivery it all comes down to intent each one of these cases talk about the intent all the cases for out of florida which by the way directly disagree with the federal decision the cited by by and for sure words even though this is unusual language it doesn't say it's going to be bailed or delivered to the state of wyoming or it is issued for the livery so if we are simply transposing this unusual your honor i think it comes down to the question of what does delivery me and as the wyoming attorney general's office indicated that you know something is is delivered when that premium is accepted and insurance coverage  extended i mean that was their opinion and the many cases we talk about instructed delivery that that could fit in here with all right well this is being issued it needs to be understood as having been issued and we consider that as being in other words this is being fully extended to each of these insured and and which then means given that intent constructive delivery method there's another aspect of this too that you know mentions several times if we're looking for things on the face of the policy has a specifically set out named insurance this is not a group policy where the insurance company has no idea really who's who's who's becoming and insured which can happen years later this is somebody that has been underwritten specifically named the information about the refinery is known to the insurer when this put together and then in for sure as they even note on pages twenty one dollars thirty six cents of their brief and even at age two the motion to dismiss is that the policy itself it says gives one address for contacting point if it's parent company plaintiff meaning sinclair wyoming and that the policy gives the same clear companies parent the right to act on behalf of all insurers so for looking for intent here and we're looking for constructive delivery it seems hard to believe especially given the guidance from the attorney general's office that the why make supreme court would not see aright you indicated th was considered to have been issued to each named insured let's assume that it was mailed we still know exactly what was meant but let's assume it was mailed to the parent company in utah why can't we consider that given that the even the other side admits you're basically acting on behalf of all the named insureds including as it says in the policy the right to receive notices of cancellation which would apply to everybody that's at the appendix of page one hundred and twenty three dollars that seems a very strong wi thank you your honor and they please the court this is a guy and night for him for sure once in pressure still has not received that appraisal but it does under the policy because the umpire simply did not the praise thing clear as a loss because he did not decide when seem clear would have completed the repair with the due diligence and dispatch which is the policy language the umpire began and ended his his analysis with the commercial settlement the commercial settlement does conclude president admitted was quote purely about dollar amounts and not about principles of claim value i'd like to talk just about one fact issue that shows how the umpire ignore to duty and a significant consequence so the markets timeline expert turn around manager their employee admitted that his deposition that did change had nothing to do with the fire and that admission means that those nine days cannot be included in the repair timeline th calculated for the insurance purpose and if you just take out these nine days which sinclair's own employee admits weren't caused by the fire that would produce sinclair's covered loss by millions of dollars but the umpire didn't address this issue and we know that because even the award the umpire explains exactly what he did to calculate it and he started with the commercial s other insurers would agree to a later date and then he relied on sinclair's concession in the appraisal that would remove ten days from the time line this really there's a pretty stu the report that he prepared that's not what's needed to get around the report because if you look at desirable or case which is which is one of the cases that sinclair relied  what the judge there said is that because the panel didn't comply with the terms of submission the challenging party there and i'm quoting need not show fraud bias or bad faith to reopen the appraisal because the panel did not complete its contractual task so we do not need to share and we're not arguing that the umpire acted in bad faith or b he just didn't do his job under the contract and the district court clearly errors when it found that the award was based on something other than the settlement because what's odd here is that the party that's defending the aboard the end of this record as well are asking the panel to ignore the award don't pay attention to what the award actually  pay attention to the e mail that's bizarre to begin with but it also doesn't help to clear because what the e mails show is that each side's appraiser was looking at the evidence but case and what the th circuit decided in eldritch or case if you can't just say well here's what parties agreed to and so i'm going to add a few dollars here or take a few dollars there that's just not  a valid way of doing an appraisal and with respect to the materials in the records you know an appraisal is not a formal arbitration process i think that both sides are interested in giving the appraisers you know as much information as we can because the appraisers are supposed to be experts they're supposed to honor so there is underlying facts in there that certainly can be considered but what the umpire is basically saying is that well if if seventeen of your friends want to go jump off a bridge then in for tour has to as well that's not why we went to appraisals that's not why appraisal exists under the policy that exists so that experts can look at the evidence and reach an expert decision you know one of the question another one of the questions the so it's interesting because in for sure didn't put those e mails in the record sinclair did you know speaking for in for a tour i would love your honor just to look at the  war because the lord is very clear about the facts that went into the analysis and that's the commercial settlements these false facts about what other insurers w final decision and not the priory but i would love it for the for the panel to look just at the decision because the decision is very clear about what it relied upon and it's not the underlying facts it's not all of the stuff about the ridiculously late piping weltering it's not the voluntary work that sinclair did it's really just focusing on the settlements ok so let me switch gears a little bit and go back to what the we're providing a lot more information in order basically to substantiate the settlement with regard to the hypothetical stronger day for the refinery in connection seemed clear gave at that settlement meeting but it it was not new information the experts had been meeting with in clare for you know over a year and that's why again to go back to the president of sting clare and his testimony bunch of information that we got at the end of that change things this was for insurers went to the meeting hit the dollar amount and the e mails show that the experts were sort of left in the position where they had to back fill their decision ok and i would love to go ahead sorry i apologize i would love to reserve least some of my time but i do want to talk very briefly about s appeal and you know i think that the panel was asked about this earlier and lexington really does and this case this issue was squarely addressed and decided in lexington it was not an implicit assumption in lexington it was decided and what sinclair is really asking this court to create is a monday morning quarterbacking exception to precedent which is that the prior litigants didn't make all the arguments that i would have made and therefore i should get a nd bite at the apple that's just not the way that i think the president works and you know i don't think that any court wants attorney general can and it's a letter from an assistant attorney general to a deputy at the insurance commission but the other thing is that it's really not talking about the question that's before this panel the question that that the letter was addressing was what do you do when you have a general class of insurance products where you have a master policy that is filed in one state and then you have certificates of insurance mailed to wyoming residents and what the assistant routes was that well a certificate counts as a word policy and if you go to look at the cases that the letter cites you'll see that they're all about what is a policy the letter not only wasn't isn't an attorney general letter it really was not about our issue chapter fifteen of the insurance code and the lexington court has a risk in wyoming had a policy issued for delivery in texas and the fact that it's had a winding wrist didn't matter seven energy industry experts and forensic accountant and those are listed they are in the old org the experts had opinions that ranked all the way from the low straight you can say which number does not belong and as to the new information question which is central to the conspiracy theory and our motto the court for might have been sinclair some objection to rights in that case but if that were all there were here perhaps that might be a valid argument but in this case it's apparent from the record don't think that that is not you know is enough to overturn a ward where it is apparent that the appraisal panel and the own power specifically substantially complied with the terms of the submission took the know i believe that that question and response really shows why exactly we need a new appraisal not just not just signing off on what the e mail traffic shows has done one of the keys there's only four things that the umpire relied upon according to his own award and one of them is exactly the kind of horse trading that there is prior decisions is not ok you know i've gone through those four things multiple times but he really does begin with the settlement and then ends with the settlement and that's not an appropriate basis for an award that is supposed to be rendered by experts based on evidence if i could i'd like to go back to sinclair is appealing one points that was raised in  really does not help sinclair because there's only one place where all the insurers are located and that's salt lake city utah so the policy can be construed as being issued to all of those individual insured that just gets you back to utah in through lots and lots of different entities and that's another way in which this policy is does  lexington he says here the parties specified in the contract where that where that little one location is going to be you know this was a policy that was written by sinclair's broker mar that on top of each page the thing clear alleged in their complaints that these policies are written by brokers clears the crew could have put any address in their lunch if it shows utah and it should be b further fact finding and it said because this policy was negotiate in london the issue didn't want all of the facts that were available said you go to go to london see clare has alleged that this policy was made in london that all of the conduct happened in london although if you look at the policy it's dripping with references to london the other issued to to wyoming and then of course the other reason that you don't get to an evidentiary hearing is the choice of law argument which we haven't really talked about today but we need to be