may please this honorable court chris for now so for defendant appellate travelers this morning i will be asking the court to conclude that the district court ruled in correctly on the competing motions for judgment and should have entered summary judgment for travelers on the coverage issue namely whether the the stolen property by jamie sesar ready that he stole from his warehouse was here on the critical facts gainey sets are already operated a warehouse full of storage of alcoholic beverages he went out and had to get and did obtain a permit from the state of new york that allowed him only to store fax yes but he entrusted that property to jamie primarily to store it in a warehouse and that property consisting of tens of thousands of cases of alcohol stayed in that one who then transported by him right excuse me all of which had been transported no not well they they're not transported by him on the inbound they're only transported by him on the outbound so that the the stock the alcohol comes in from suppliers it's  offloaded stays in that warehouse sometimes for months in years and then periodically we may have a disagreement but either once a week or two on average twice a week there's a call to jamie sesar ready to say i want you to load certain cases on a trust anything any of those bottles transferred from the the retail store because there are too many years and we were transferred from the retail store to the where no sir that to my knowledge and i believe as a record all of the stock that's in that warehouse comes from suppliers the only trucking involved trucked in by the supplier director on him so the transportation that he does did is solely from the warehouse to the retail store that's correct  and so and there's also no question that the theft occurred from the warehouse had nothing to do with the trucking operation and is found by the district court and not appealed by pla those staffs occurred in december of two thousand and eleven i'm going to get to what that might mean for valuation is the exception from the exclusion only apply when the truck is moving no and that's one and the district court when a rai here as the policy is structured there are two parts there's the property or property float a coverage part which is the first part and then is to transportation coverage part to transportation coverage part covers goods that are in transit in the possession of a motor carrier is to requirements on that part or parts but what about the property floater cover and never get to that just excuse me on the property coverage that property coverage is geared to the location had and the court erred when it said well travel is contending that this exception to the exclusion only applies to things in transit not correct let me give you an example example is jamie says the ready loads are truck on friday and that truck sits at that location for friday saturday sunday in till it moves on monday that truck is not in transit that property is not in transit it would still be covered under the property location park subject to its provisions so it's changing the policy so what if the goods are delivered on friday from se well if i'm not clear what your honor is asking me but but let me try to tell you just try to address let me be clear that i'm sorry you just said if they load the truck with the truck doesn't immediately leave it sits there for over the week and then load doesn't leave until monday there's coverage because it's on the truck and it's not in transit it's not interim and at that location i'm saying is the goods arrive on friday that they're going to load the truck on monday for delivery and sits in the warehouse over that weekend there's the then the exception to the exclusion doesn't apply is that your is that your view while your honor if what you're asking is this that the that that shipment that inbound shipment isn't destined for that location it's destined for the store in new york so that it remains in transit as a temporary stop there then the question is then there would be coverage for there because it's at the location it doesn't matter whether it's in transit or not in transit it's at the location the exception would apply because it's still in the w if the property is viewed as still being in the possession of the inbound truck it would be in the custody of that common carrier but it would be at that location it's not his designated delivery to the store in thirty fourth street but that delivery that truck doesn't leave until tuesday becomes in on thursday they put it in a corner of the warehouse with a stamp on it says go to fifty fourth street on tuesday during the regular delivery is that cover if it's at the location with the warehouse it's cut so how far back in time you go i don't think you go while you go to the question i was addressing the question of whether for that when you say it is covered can't we just agree on what it is covered the property in a truck is now covered property under the plot property float up coverage form because it's at that location but it's subject to the exclusion  the property let me i'm going to just add one other fact the property is at the warehouse and is stolen the way it was stolen here is travelers going to pay for it or not paying for travel is not going to pay for not going and does that mean it is covered i was using a different way all right you think you live or property if you're covered property but it's not covered under the policy because the exclusion applies it's an int at the warehouse in storage and it's not in the custody of a c district court was suggesting is that this policy should have been written to say except this exclusion does not apply to a carrier for hire hired to transport goods from point a to point b ok but but that second clause is redundant of the of the phrase carry for hire ordinary people know understand that when you when something isn't in the custody of a carrier for hire it is for the purpose of transportation this property that was in this warehouse and was stolen from this warehouse if the weeks and months and sometimes years was not there for purposes of transportation but was with the best way a carrier for her excuse me was best way carrier for her in one setting it was but just because they could be described as a carrier for hire in one setting doesn't mean there are criteria for hire for all purposes and all times people  companies can act in different ways at different times and be described as different when you're doing that correct and that's the reality of what happened here to suggest that that this that of of the four thousand cases occurred when it was in the possession of a custody of the howard scuse me distorts the reality of what happened here if i may i'm sorry on so wow i mean we're it seems to me we're drawing a very fine line because that the blues sitting in the warehouse is always going to be moving i mean it's except well eventually except when the owner takes it is drinking it i mean it's supposed to go on to somebody who's going to sell it in retail and always going on to somebody who's going to sell it righ eventually i mean in theory yes no always have always there isn't a bottle there that isn't going to move along at transportation from that spot to the other spot eventually you're on but it's not in principle but it's not in transit is what you know it's it's not being transported it's not just the technical phrase  transit that that we have shipments here that came in in march of two thousand and eleven that is that into the warehouse that was still there when it was when the theft occurred in december two thousand and one we have product that  shipment from seagram's is coming in on a friday and it is passing through the warehouse getting loaded on a truck on monday and is moving on to the to the insured that never happened in this case what is that covered sorry is that and and a loss occurs with respect to that shipment from the warehouse it's just moving it's it's in a warehouse being stored even if it's the carrier for others were well but that that begs the question right which is going to be put on a truck on monday two days later because  hypothetical i'm agreeing it's a hypothetical and hypothetical where i have a carrier for hire that's operating the warehouse as part of its carry a for hire activities and that warehouse is a temporary  waypoint to accumulate split do other thing transshipments however we want to call it then it's still in the possession of a car if i hire and if that carry a higher work to steal it if it had been intrusted to the  morning your honors my name is dentist antonio with the law firm of wagon myers and i represent the warehouse winds the police here i think any discussion of the law facts of this case must start with the basic proposition that second circuit is well aware of that and that is that a carrier can limit its liability in a policy but it has to do so in clear and unmistakable language so that the reason noble business person reading that policy is on notice beforehand as to what their coverage times  are and i can't help but note listening to the questions and answers they were just posed and received from counsel that if there's that much debate about what the policy means the policy is not clear and is judge forrest below stated quite simply and quite directly and i think it's the graph and then of this case is that the policy that the carrier for hire exception to the exclusion reads very simply there is an exclusion and this is it the record a five seventy three this is the policy and this is where the analysis i believe begins and ends we will not pay for loss caused by it resulting from any of the following and then d is the relevant provision and it says despite honest acts by you or anyone intrusted with the property etc etc and it and the excess are ready was intrusted with the property if there was no further language in this we wouldn't be here because sesar ready stole the goods and sesar already was someone we entrusted it to but then the language goes forward and says this exclusion does not apply to property in the custody of carrier for hire there's no further words it doesn't say if he holds it for more than three days with thirty days or if it's in his warehouse it just says a carrier for hire we no assessor readies the carrier hired because the he everything was delivered from the warehouse to his retail store in his own station wagon the result would be to say if who delivered an estate your client and who stole is the same as all the ses s are ready is a carrier for hire who why you are saying it i just want to be sure that's what that is what i'm saying and that's not based upon legal theory or argument or posturing it's based upon what the carrier said to its insured when it excepted premiums for four million dollars worth of inventory nobody expected that that coverage was limited to four million dollars being in a truck that was hijacked there was a warehouse there was four million dollars worth of inventory and contrary to councils assertions to this court that was always inventory that was moving into the store direct if the warehouse had been contracted for by ass in the warehouse and tracked by well let's start with the wine shop right why why wholesalers as a warehouse and the carrier was to bring it there put it there and then go get it when he got a fax but it was stolen from the warehouse which is a separate operation we we wouldn't be having this discussion you would be covered under that circumstance also you want to because it's the identity of the person you have entrusted it to see the best way logistics is licensed under the u c c as a carrier for hire that means they meet certain criteria imposed by the federal government to have that license or so i would argue that the purpose of this clause which is irrelevant quite frankly because it's not the carriers intent to carry it it's intent doesn't govern it's what a reasonable interpretation is if the clause is not clear that's the only analysis that takes place here and there is a reasonable interpretation that favors my client and since the carrier chose not to put all of the extra language in this exclusion they can't rely upon it now but back to your question your honor it's the identity of the individual or entity to you in trust the goods to and it has nothing to do with the knowledge of your client i mean supposing same facts except the the transportation into the warehouse is done by the distributor for the liquor the transportation out of the way or houses accomplished through his own station a carrier for hire that doesn't matter he's still a carrier for hire even though your client did not based on this policy language you're absolutely right your honor it's only what they write in the policy when they're selling the policy who is not what your client but w at the contract says if you've been trusted to goods to someone who steals the goods are insured and covered for four hundred four million dollars the exception is if they've stolen by someone you entrusted to the exception to the exclusion is if the person you intrusted it to happens to be a carrier for hire then that exclusion doesn't apply and if they wanted there to be a duration for when or how long it could be held they had to e location is listed in the policy it's located in hundred markets boulevard new york yes we made that point a trial not only was it listed they went to the location they inspected it before the loss they approved it before the last they knew it had four million dollars worth of inventory its name to best way logistics and transport my clients store and this is in the record also is only two thousand square feet it happens to do  sixteen million dollars a year in sales so you obviously in two thousand square feet the operation doesn't include warehouse ing at the store and this carrier knew that also and the way this store worked was they used the carrier for hire who was licensed to transport the goods was licensed as a carrier for hire and they drop shipped everything coming from seagram's or vendors or wherever into that facility for temporary holding until look at be shipped into the store to satisfy sales needs and contrary to what council told you the goods didn't sit there for years there's no record of that we were doing sixteen million dollars a year in sales it was only four million dollars worth of insurance at the warehouse the inventory turned over sufficiently well for the business to have done sixty million dollars a year in sales and this contract has to be enforced as it was written if the carrier wanted to limit its liability to not include the four million dollars of inventory that they were being paid a premium for while that carrier for hire held it in its licensed warehouse then all they had to do was define what carrier for hire meant in the policy and then they would have put a buyer of this contract on notice before he and that maybe you're going to have to buy a separate policy  and my colleagues the arguments that are going to be made because you know them from the brief with respect to the amount assess ok you're on that's that's the easy part i've been doing this for thirty years i do insurance coverage litigation every single element of damages in every single case has to be proven to a reasonable certainty that's the burden of the plaintiff that has to be some method with some formula to the calculation  yes yes that was a burden to show i don't have to prove every single measure of damages the case law is clear on that also and you don't have to prove it to an exact certitude albeit in this case we actually did because the there was a perpetual inventory it was a valuable commodity so he kept track more or less of every single bottle after the loss there was an inventory there were twenty four trucks of merchandise over four thousand five  of product that was inventory and removed one truck went to the store it did not go into the claim at one point there appeared to be a two hundred twenty six case discrepancy which actually reduced the claim but the next day was in court today testified that's because that didn't go to the bumblebee warehouse that went directly to my store it's not in the claim it was two hundred twenty six cases one truck went to the store i have the testimony of the forensic accountant mr altman who certified and audited the loss and he came to the conclusion that the books and records reflect the loss exactly out's it's been presented it's one hundred percent correct and then the last point is to use the december or january pricing we argued to the court that it should be january pricing because what this policy says now may continue what this policy says about the losses and i argued this to the judge unsuccessfully she took december but i argued it should be january because the policy says that for evaluation this is it a five seventy one in the record the value of the property will be the least of the following amounts number three is the least of the falling amounts it says the cost of reprint replacing that property with substantially identical property in the event of a loss or damage the value of the property will be we know that it was discovered and realized and recognized as a loss in january and that's the only time it could have replaced it is once i recognized it was gone so i argued to judge forrest that the period she should use is january because that's the first time under the policy i had a loss that i recognized that i could have replaced and that conformed best of the policy language she however took their argument that it should be december now i don't have the burden of a trial proving december and january and there's a passage between judge forrest an opposing counsel as to what it should be december january she invited him to come forward with december evidence th evidence on december was that from a sampling that because they had all of the december pricing from what they put into evidence from a sampling it was lower she gave them the benefit of the doubt and she discounted the whole claim of thirteen percent  even though it was just a modest sampling that showed that so if anything we were short changed on that analysis but so be it and not cross it we haven't crossed the field regrettably thank you miss thank you eighty three that was an agreement for warehousing only that's all it related to and these two parties treated these relationships separately there was separate bills there was not one combined bill there was a bill for warehouse services and there was another bill for trucking services when the trucking services were rendered this was completely separate if you accept this construct that simply second and i think one of on one of the your honour's may have addressed this we have jamie here with two customers one customer he provides only warehouse services for and that customer is insured by travelers another customer he provides only trucking services for and that customer is not insured by travelers jaymes that the exact same thing cars intrust the property to jamie for storage jamie stores it in a jamie was a carrier for high even though he performed no carry or services to the customer whose property he stole even though that was never in the contemplation of that customer even though the customer may not have known that jamie was providing because once you attach the label it's their position it was that this records position that he's a carrier fire no matter what he does he's operating a nuclear power plant he's a carrier fire fees performing medicine surgery without a license he's sick he's not a doctor he's a carrier for hire with that moving on moving on to the valuation valuation here is defined by the  time of loss there is no argument that the loss occurred in january there's no evidence there is some evidence that it occurred sometime in two thousand and eleven and the vast majority of it occurred in december of two thousand leavitt and the district court industry with published prices that apply for the entire month there's a book for every month if this was just about arguing to the court two different measures plain both the december book and the january book ok plaintiff didn't do that and in fact that judge this court should not have even emitted the january book into evidence because it was irrelevant this court you mean the tr openings three throughout this entire litigation they wanted january so they thought they could leverage her own judgment fars they wanted to create a situation in which judge had two choices she could go with them on january what she did give them nothing but that's what they thought was the strategic gamble but what judge farceur was not willing to go there because the policy said what the policy set and that was the only measure that would apply to this case and so judge farce there try to fashion a remedy and she had no business doing it and she had no basis i was a thirteen percent reduction reasonable because there's no foundation for  percent by this method she had only ten the prices for ten items in evidence one of those who come in through plaintiff's examination of the scene takes a few takes the ten items sees the increase in prices and says that's a thirteen percent increase and goes down is that the correction she compares all she does is she compares item by item for those ten items ok the difference between december and january what's wrong with that she adds those numbers up and she comes out to thirteen percent one it's not it there's no analysis done that that sample and that those ten products in whatever quantity she doesn't even address the quantity issue the weighting issue that those ten samples or thousand products are representative sample and statistically valid there's no expert testimony that's the that's the stuff of expert testimony there's no expert testimony she just comes to that conclusion without any analysis if an expert had done this if an expert had walked into this court or into the district court and said i've only got these ten i'm going to end up this column that column that comes with thirteen percent and that represents approximately two hundred forty thousand of this million wanted january prices and i've concluded that it applies it should apply to the other million one without anything else that would have been in that opinion would have been stricken would have never been considered in evidence what the plaintiff is really arguing for here is h shift in the law zero on burden of proof on damages claims taken a situation with damages are hard to measure indefinite a measure prospect of profits what's royalties all the calculations that are impossible to come to uncertainty if you put in the december two thousand and eleven by did not well nine of the items that are in here by me for another purpose because the judge challenge me to prove that there was a material difference between the january prices that they wanted and what i contended applied on the policies you did you put in the prices from december to show the thirteen percent was wrong was not in the ballpark i didn't even i didn't even know that the judge was going to do this i argued that there was no basis in the record for her to render a verdict there is a base on modified order calculate data to calculate i'm sorry to calculate damages there is a basis to calculate damage because that evidence came in through me of two hundred forty three thousand dollars approximately that's all there is w n argue this issue it was never in the case and i suggest to your honor that it wasn't my burden to prove that percentage wrong because it is unsubstantiated in a record in did issue was confronted with this problem she didn't want to give them only what they had to only what she had a record basis for so she turned herself just let me let me ask you this question and then we'll let you sit down because you've spent a lot of time trying to convince us it would seem to me that the owner of the warehouse really read the insurance could come in and say look i've without any documents at all but i've run through my numbers and i will die under oath your honor my best estimate of what i lost based on my years of experience here at center and quick review of what came in and what went out is a million dollars is that evidence incompetent it's not incompetent iran it could the judge rely on that evidence they're well sorry there for the judge could rely on that evidence right yes ok i couldn't disprove it that's right right right you know here's what happened here forget trying to find my citation to exactly what happened here is mr d but the important thing the real issue is the absence of that question left judge farce with no basis to do what she did he had the books know she didn't have the box she only had january she did not have the december book the december book was never put in an evidence never and there's no explanation for it and it was plainest burden to put it in evidence not the defendant it was he had the january book and then to give you discount every time somebody says to you can have one minute and then we'll see if you can stay under that being the case if you look at page thirty three of my brief here's the dialogue between mr phenomenal and the judge on this january date i submit your honor the evidence will show that there exists no basis to apply the higher january pricing a court that says so who's going to have the evidence in the record is that the december valuation he says i assume that's going to be plaintiff and then here's here's when it comes down to the court well if they're only going with the january then they may or may not want to put in december so is there somebody that's going to put in december that you are aware of do you have a witness or mr goldstein are you going to cross examine him with that  how is that going to come in mr well i'm not sure what you're asking me but i'm very interested in what you're asking me because if you're proposing to me it's my burden and then the court says and i'm skipping over defendant can poke holes in something but altman who was the expert who had all of the december price book when he did his analysis and mr altman testified he relied on his statistical analysis we had only eighty four items stolen they had pricing on eleven of the eighty four items that answer your honor's question is how the judge came up with the thirty percent because she had a statistic sampling of the eighty four items there december price because she had eleven of that and that showed that in december it was thirteen percent less for those eleven items then in january it's perfectly permissible to use to testicle sampling it's every accounting case and she applied that's the testicle thing up with analysis so there was a reasonable basis for how to meet the standard to come up with the damage estimate that set should satisfy any court based upon the records thank you very much ron as for that extra time you did it almost in two minutes and congratulations thank you all right well we will deem the case submitted as one of my colleagues and we will reserve decision but thank you