morning your honour's my name is david yeah fame a please the court i represent the appellant robert to see this flood insurance case involves a number of issues that have been fully briefed by the parties there are three points that i would like to stress today st there is no genuine dispute that the district court erroneous lead determined that there was a functional equivalent say between the plaintiff's home at two  the other property at two hundred and eighty five dollars column rich and all state now finally admits that there was not even a full payout on the limits of the policy for the coloreds property as the district court erroneous lee thought nd it is apparent that all state has abandoned its argument that the one year rules set forth in section seven h three of the insurance policy applies to bar mr two c's breach of contract climb rd there can be little genuine dispute that the district court correctly held that the agent who misapplied mr tuesday's premium payment was allstate's agent not mr tuesday's agent for purposes of that ever so where does that leave us and what is this court supposed to do we submit that the proper focus is upon what occurred with respect to the premium payment for the policy for two hundred and ninety dollars exeter period and it is improper to look at what occurred did your client a contract thing isn't doesn't a contract require your client to give notice if they are not being notified respectfully your honor the answer is no because you have to look at the language of that one year limitation which was actually a grace period that one year limitation rule only applies where all state has prepared an actual renewal notice and either didn't put it in the mail or melted to the wrong address that's the only circumstances in which it applies and under basic rules of contract interpretation you can't make that appl this other situation where they never prepared let alone mailed a renewal notice that would change the the terms of the contract it would change the terms of that provision which appears as contractual obligation what d is the breach ok so mr our breach of contract claim is that mr to a ca was provided with an offer by all state to renew his policy he accepted that offer by tendering a check to all states agent allstate deposited the check unfortunately it misapplied it to a different property not owned by mr to s was there after entitled to a cancellation notice and a renewal notice one year later he never received that aren't there and it's a shame that's awkward d that he was entitled to notice as he didn't get them what what would the remedy be i mean what what i mean you're arguing that in essence the many as a policy has to be deemed an effect it is that much arguing and if so what what is the basis for saying what the many the the argument is indeed that the policy remains in effect there is only one provision that would limit it to what one year term  that's the provision i was just talking about that does not apply so we would respectfully submit that a rule of reasonable in that supplies had the one year rule applied the policy would have extended for another year from february th two thousand and eleven to february th two thousand and twelve his home was destroyed eight months later and it's our position that it is not on reasonable to have it carry over to cover that destruction and i don't submit that new york state law covers this but it's  ask you this assuming we were to agree with you that all state reached its contractual option to generate renewal notices why why are you able to maintain a contract claim in light of the s f ip terms that make the insured responsible for notifying the insurer of non receipt of in a road renewal notice i mean i understand that that too would not ever be required under state law but it is the s f i pay well the statute you cannot forget that the statute four thousand one hundred and four dollars a say mandates that the insurance carrier notify i understand there is not you know gay student by your client when the year passes and there's no renewal to say you know i didn't get a renewal notice on this contract and your client didn't fail to do that one year but two years that he certainly didn't think he was in getting insurance for nothing i cannot understand that he might have thought he had insurance once he tendered the check but for that ok first i heard judge calibers he asked if this was a federal statute i was referred me to are a state statute it's a federal statute and in terms of the contract this is  this is a policy and the one year provision in the policy doesn't apply and the case law on insurance in that we're not answering my question well i me and  answer your question your honor my position is that there is no provision that covers this situation in the policy and under the rules that apply to insurance disputes whenever there is any and your position be same the five years have gone by if it would but but my but my argument is unlawful is how long on this when he doesn't give any notices that's an interesting issue to yes of answer but just how long how long does he can you do things well i submit that a rule of reasonableness applies and i you know i'm i'm not sitting here saying it applies for fifty years or anything like that but my point is that the hurricane occurred eight months after if the one year or rule did apply that would have been carried him over to notice that he didn't get a renewal notice that is the standard flood insurance policy or you know you did not know that he and his standard flood insurance policy made him responsible for notifying the insurer of non receipt of the renewal notice your honor i respectfully disagree the provision that you're referring to is a grace period that applies it's a one year grace period that applies in a situation where an insurer does not receive the notice and advises the carrier that they did not receive the notice and if the carrier then finds that it had fact prepared the notice which did not occur here and that it either you know never mailed it or melted to the wrong address then the one year rule applies but this grace rule does not  transform into an obligation for an insured to say hey i didn't receive my re because you can't extrapolate what once you're in a situation like we are here where there's no specific rule that applies then you fall back to the world of insurance law where i mean unless you want me to talk about the agency issue i know i'd like you to address one for me is a serious question and escort issue and that that there wouldn't be but the question of preemption it seems to be videoed is that if it is just a rule and the question is is this a renewal or this was not as a the district court found that had the inquiry been just into the agency issue it would have ruled in mr to seize favor but then it went further and allowed all state to evade liability upon this ground that well the the payment was applied to another property owned by mr to seize by and i understand but i understand exist and under the federal law is your tort claim barred because we you you may not put the government in situation i now i understand what you're saying your honor i apologize the there the federal statute is very clear that the federal government does not ind for its improper actions this lawsuit is against the the agents say this lawsuit is not against the federal government and so you know we cited to federal claim does not exist here why is this the toward action federal court at all that is if we were to decide begins you on the  contract claim then isn't what you have left a tort action which is a straight state court action and shouldn't we say that that ought to be dismissed without prejudice being brought in state court and the state can then decide all the questions including whether agency exists because i'm not quite as sure that the agency issue is is is is simple i'm not saying that this record was wrong but it's a question of state law and if it's a question of state law i kind of like the state to let me know about it well that's an interesting proposal or concept your honor but the agency issue is decided by application i mean that's what all states are doing by application of a federal role they're relying on a federal role to evade yeah but but that's that's all assuming that this is part of in federal court because of a federal claim and i'm just saying if the contract claim fails don't we i imagine that my adversary would be very upset with such a result because now we i don't know how we would have say i understand but now we would have a a flood insurance policy claim b eing determined by a state court and you know i would respectfully submit that it would properly preserve that there's no requirement for that to take place and that it would preserve judicial resources to resolve the tort claim as justice as judge block was on the cusp of doing had he not gone on into this area of acquittal and say correctly concluded that mr he was not entitled to recover you click that insurance payments for payment for two properties based on a single premium payment i believe reggie if five collards and that the but even even if we shared that he did own it for these purposes there's a difference in the extent of damage i mean i don't know that the two properties  allstate would have a claim for a stand off or something but i don't think you can simply say one washes the other your are we didn't say that one washes the other but we sell the district court to dishwashing to say that it seems to think that the policy is been paid to the land which i think the record shows it's not the case it's not that that's correct i think that there was a factual error on that particular fact this court can affirm it even though the decision even though that one particular fact was incorrect and in fact not it's not just the fact that's incorrect in other words but you know the question is how much damage was there to be x at their property or are there was as the court correctly indicated in his prior question there was no policy of insurance in place on the exeter paf property at the time a little that's a question so let's let's focus on that and not on this question of the equivalent c that's focus on whether there was exactly where i have i was trying to get to at i believe the court's questions if are answered if you look at can you not hear me or are now i have you oh yeah i haven't turned up ok the i believe the courts questions are answered in some of its precedents in eighty four sorry i'm fletcher vs standard fire which is eighty five so rd three  the insured didn't just fail to render a premium payment after two reno will notices were sent for the property on both to eighty five property was it your responsibility to send him a failure of renewal property notices of the ex of her property or was it his responsibility to tell you that to reno all notices two he didn't really know so the policy lapsed and to answer your question specifically as to whose obligation of is if the court looks at fletcher which i cited previously and also eighty four albany the do and under the policy itself and the and the governing regulation the duty is squarely on that actually i i'm not sure that that's what opposing counsel is saying i believe his argument is that there is no particular provision in the n f i p national flood insurance policy that or the manual that specifically deals with this particular case and then tries to go to state law or the law governing insurance which is what this court sorry what has been held in this court and other courts which is that the onus the burden of of notifying the insurance company is squarely on the insured you can't sit in your house your house exit or property for to bring the oil cycle and not receive a policy of insurance or pay a premium for that and say you can't say that i didn't know i didn't have coverage he sat in this house for over two years let  me be sure i understand the crowd you when you say he got to renewal notices it's the nd renewal notice again he'd make sure i'm correct on this that prompted him to send the check to the roker that then on the the property at issue now then next year comes and he is not sent to renew all notice on that property because in the in the insurance you if the insurers view it lapse am i right that that's where it happened here yes your honor one hundred dollars ok so you're saying that if he in good faith thought he was covered because of the check he gave to the broker when the next year came around and he didn't get a renewal he was obligated to tell you that is that is that what this reduces to yes or are there he also he further argues though that the one year old doesn't apply at that point a year later because there was no renewal notice prepare i think that's what he's arguing and so therefore that rule doesn't even apply how do you  the argument but my answer is your honor the burden doesn't shift you don't get it he as a homeowner under the national flood insurance think or i think the point is you know before and so therefore that provision doesn't apply at all that's my understanding of his argument i respectfully yeah i think his argument i think the case law is very clear on his argument about whose burden it is to determine whether or not they have flood insurance under the national flood insurance program which is federally subsidized every year and he sat there not just for the st year but for the next hour well ok now because the policy would have been or at least it is arguable that the policy would have been in effect but for better but for  so your honor your honor the argument is simply not simply the argument is that the district court incorrectly found that the agent that was s plaintiffs and settled with by the plaintiff then doesn't matter if you were negligent if you were responsible for b agent the fact that you meant one settles with the servant doesn't mean that the master reasoned also level of events that's perfectly obvious so of a question is why aren't you all for whatever damages the servant didn't pay your honor because problem tell me why it was preempted when this was not a renewal if it was a renewal then it would be preempted under most of the cases but most of the cases save that is a new policy it is not preempted and the th circuit says that once you are outside the grace period it is a new policy now there was could be a question of  which brings me back to my previous question which is if it isn't preempted then why isn't it a plain and simple tort state tort case which we shouldn't decide but just dismissed without prejudice and have the state  courts clearly as a matter of state law decide the whole thing itself so your honor my position is that it is preempted so i can't really articulate or argue well that it's not and let me further say to the  was the reman or ram and versus state farm firing casualty which was actually relied upon very heavily by the plaintiff with regard to this i don't know we can so your honor the the w y l in this case though the right your own insurer is all state right and it stands in the shoes of the federal government and the case law across the country is legion with regard to the n f ip national flood insurance policies and arguing that this is a renewal now and sumi we would you agree then that he's got it a contract that if we were if his contract claim is valid this is a renewal not a new policy i'm just trying to figure out what your argument is here i would have thought that was your argument that you know that this this is not a new policy on his theory but i don't understand i'm not even sure this argument is made in your brief but that's another question altogether well he did just that we don't understand your argument that's the point of alibris see my questions we don't understand what you're preemption argument is ok the preemption argument is that the w y o stands in the shoes of the federal government and that any tort claim against the w y o is preempted by federal law all tort claims arising out of or under our preempt against the w y o they are not as this court and i think where the disconnect is they are not preempted with tort claims against the agent of the insured which is filled out in the regulations and in this case is going to be the rodriguez i think it was riley i get the name wrong and it is and it's their age and so in that respect it isn't it they claim any i'm not sure i see it at all they did you may have abandoned preemption by failing to articulate in your brief if that's not the case point us to the eight yes yes your honor i appreciate the question the brief but it does not tails what i was trying to explain to the court it dovetails into the agency the agent discussion that is argued at point three where you see i can understand that the agency question might be that the district court heard it finding as a matter of law that he was the agent that's not a preamp should question and i have i am concerned as to whether we been reached preemption here when it's not argued to us as an as an error or as a pace is for upholding the district court's decision rather i don't give me your honor i understand tort suit an error isn't the appropriate thing for us to do is send it back to the district court to say it's eard just say that if there is a preemption argument we should look at isn't preemption whether it should be in state court or federal court but send that rule against you of the error that was made because we're really not in a position to decide this other thing and the basis of gaffney sorry i had to on mute well i guess i should just leap into what the entire conversation has been about i would respectfully submit that it would be improper to remand on the preemption issue which was not raised before the district court which was not raised to this court in the brief by counsel for all state and the district court proceeded with an understanding that it had jurisdiction over the issue it was on the cusp of ruling in mr to seize favor on that issue except it went into this deep two are over this false equivalency between the properties which i believe you honour's all d understand based on your questions there's no relationship there's no proper relationship between a primary residence and a secondary investment property and the well let me let me suggest to you how it might come up and you can tell me why i shouldn't be thinking along these lines let me let me suggest to you that there might be a question as to whether the district court could decide it's matter of fact that the  was all state's agent in this regard and that's because the policy notice to you express lee said that you were to send your check to a post office box and instead you gave it to mr rodriguez and i understand all the arguments for why he's all state's agent but there might be a question as to whether he was an agent for this purpose and you yourself advance arguments that you had worked out of an arrangement with mr rodriguez for him to be your fiduciary in this connection so there might be questions of fact on that point and if there are questions of fact on that point there might then be a question about whether or not this can be heard at all in federal court because of the issue of preemption so if you want to say why i'm wrong in viewing either that the preemption question that way or the agency question that way i'd like to hear you know why i should be thinking along while you're online there's already been full testimony at a federal court deposition in this case there was not just the agents from all states but there was all state's representative who express lee confirmed during her deposition that there is nothing improper i understand that the district court could not make findings of fact undisputed facts right but right and there's no dispute that there was nothing improper there's no proper distance no genuine material has you agreed that the notice told you to send it to a post office box you didn't do that i said i understand whether there was agency that particular it's not about or whatever and it might be resolved in your favor i'm not arguing otherwise i'm suggesting that there may be a question of fact that's all ok well i was asking for a judgment as to liability and mr to see his favor and a rematch and for the determination of damages that's what i'm asking for a whole lot of thank you both very much lots of complicated issues in what looked like a simple insurance claims to begin with the court will reserve decision