the court then what i think i would like to do is i think the nd appeal against the insurer will focused more on the details of the facts themselves which were developed a summary judgment if those facts are sufficient they're also going to be sufficient going forward in the st appeal since the allegations are the same as the evidence that was ultimately produced with albeit with slightly less details so in light of your comments i think what i would like  this st one is to focus on the distinctions between adjusters inch insurers under the law is there some splits among the lower courts in the circuit regarding the standards to be applied under the texas introns code and if there's something else you decided you would like me to address instead of that jump in obviously the st split that is that issue is what i referred to as the messerschmitt line of cases in the cases on the other side which involves the question of say irrespective of that even if we assume that that provision of the code applies to the gestures how do you stated a claim referring just to that particular statute for instance surprised by something that the contractor the architect didn't anticipate and quite often those are just the subject of a change order but they are not the subject of claims for misrepresentation failing  dollars where as the full amount of coverage on this claim was two hundred and fifty by september or by november at least when he had the injury years report in the bid that adjuster in the insurer knew that the claim was going to exceed the full value of the cover  roof no i don't believe it is your honor i think the problem here is the additional amount that is issue on on both of these appeals is the additional increase caused by delay in affection waiting a settlement of the claim by not approving none except in the a claim in november or december or even in january in saying here with this is covered we will pay this you do the repairs or pay as soon as you get the repairs by not accepting the claim at that point and instead taking an entirely different  and i've never seen it before and never found in the case law position of independently going to the roof or in saying let's do it on a different approach let's do that in this uncapped approach that resulted in six hundred thousand extra costs i mean to say ask you a question but the insurance company paid all that it was required to pay and the policy under the policy yes me i'm looking for admission i just said this question in the back of my mind was surreal for a member of the congregation for a chance it's not in the record i don't have any idea have here is because of the way because the lay in effectuating and going beyond that to actually interrupting the agreement or potential agreement how we want to look at it between the roof or in the church you increased  six hundred thousand the question isn't how much it would have cost to the roof or the roof or made in one of the i think everybody lexington or york's words that this was a gross underestimate but the factual record shows that they never would unfortunate but the provisions of the code that you say are violated have to do with misrepresenting a material fact or policy provision relating to coverage no misrepresentation only comes in later if you don't agree that the that the adjuster actually interrupted the benefit of the bargain what we got the st of the areas that interruption of the at that point it was reasonably clear this was going to be for the full policy limits of two hundred and fifty thousand the adjuster in the insurer had a duty at that point to effectuate a settlement instead they did so what they did instead was the juster local building code right now i thought the whole point was that it was going to cost more to comply with the building code i'm not sure i understand the question well maybe i don't understand the facts but i thought the  whole one major reason want one particular reason why the it was underbid was said that that you know that code compliance was more costly than the adjuster had to rea november as of december the church had in hand with the ripper was already under contract work have a good one just suppose for example that the roofer had done something which they know they knew was talking to comply with the code and that wouldn't be allowed would it and i don't know what that would not be allowed but they would have had to have complied with the building codes etc get approval o that there's nothing in the record that would suggest that the roofer would not have comply fully with all the requirements at two hundred and eighty five thousand dollars that that's what the roofers own the witness and affidavit said we would have complied with that we would have honored this bid it wasn't an issue of that they would have then tacked on more and more and more it's an issue more along the lines of if a guy offers me to sell me a lexus in a low price and i have the opportunity to do that and somebody comes along and interferes with my right to buy the lexus at a good bid that's in the nature of going off of a little other direction that's a interference with a perspective contract different elements for that pleading rules where you had to is present five things totally precisely but you do have to have a theory and you you are do you identified three provisions of the insurance code none of which appear to cover realizes this is very complex when we've got this is going to be over two hundred and fifty thousand the adjuster the insurer there at that point except or deny the claim they look at and say yep this is covered there's no question it was covered we'll accept this claim we don't even november by december the adjuster of the insurer should have accepted that claim and said we will pay up the policy limits you'll actually get your payments when you do the work will accept it right now in here's what would have happened in that scenario they had a roofer will and do a to take this and do this based on the assignment of benefits the roofer then or they could accept we got a loan for that amount but they would have had the work done for two hundred and eighty five thousand dollars at that point  they would have been got reimbursed for two hundred and fifty dollars in their out of pocket cost would have been thirty five thousand dollars that's what would have happened if the insurance company had properly accepted the claim accepted the claim in november in december even in january thirty five thousand dollars instead of six hundred dollars though but then look at this look what would have happened if they had denied the claim if they said no we're not giving you know but anything diet that's counter factual and it has nothing to do with your obligation to plead the case but it illustrates the issue that was ousted as to what are the damages what's the different scenario if they had denied it would still be here early in the district court but the suit would have been for the two hundred and eighty five thousand dollars because that's how much it would have cost to charge to get the roof fixed they would have had their roofer under his bid the arm's length bid of two hundred and eighty five thousand dollars they would have gotten their roof fixed and they would have got reimbursement for the for the cost the only reason that extra costs of the church occurred is because the insurer and his adjuster did not comply with their obligation to adjust this claim properly in november  again i'm not sure if it's in the record i don't think it is my recollection is that it was a contract in advance for an open ended amount that they were going to do not know what the mountain was at that point the the bid they were talking to do they went through they did everything the adjuster house in the juster st without telling him so on separately agreed with the roofer on a different process then and the reason they still didn't object at that point and frankly  implied misrepresentations under andersen bring would in company under this course of this court's access medical opinion things like that that what he did was telling us this is for the best this time the material is the best approach and he also made i didn't get a chance to make and you know i would have said this i would have said that here you know there is an amended complaint i heard all you said about the code in no at but just mcgrath it was conclusion really it was nothing  s claims against york for failing to meet the pleading requirements set forth in federal rules eight and nine and ultimately for failing to state a plausible claim for released under federal role of civil procedure called the sets despite these arguments to the contrary there's no need for this court to decide complex or undecided issues to confirm that u b c claims were properly dismissed instead the crux of this case is whether you followed well established pleading requirements of the federal rules and united states supreme court precedent because you see did not follow the rules its claims against york were properly dismissed and i want to focus today on the primary reason for that dismissal and that is their failures in a rule a new as this court is well aware the party must do more than simply allege legal conclusions or cite the elements of a cause of action here you have elements of the cause of action not the factual basis supporting any purported elements indeed the entire complaint is devoid of any factual support necessary to sustain any of its chosen causes of action against your work and ultimately the heard of an adjuster telling somebody it looks as if your your claim is going to be x amount over the policy limits and then they come back with something that's triple  heard of code limit upgrades anyway but is that standard practice or your honor it is it depends on the policy but there can be various code limit endorsements which allow the insured a certain amount  for which to have monies available if a code limit upgrade is necessary in the event of a repair by that if you have an older property your honor i don't know exactly what might be available to all the insurers i think it depends probably on the insurance history the location and various other factors so that failure to properly settle yes your honor there is no allegation here that york as the adjuster head in the authority to settle the claim at all and there's no allegation here that york denied any such claim the fact that we're talking about here is a bid which is part of the process but it's not the claim itself so i think we're conflating two different principles here a bid and a claim and there's nothing to accept there was nothing for york to accept what happened was he root for the seas river actually submitted a bid and then york asked for backup on that and from the original bit and so the given the date of the church and the uniqueness of the job the parties agreed to move forward on the time and the tools approach because it wasn't quite clear what was to be expected based on the allegations that late they stopped at the river i'm sorry for stop yes or yes so i thought there was some indication the fellow who worked for the roofer said i would have been fired if i had if i had been asked to do the backup you honor and that's not part of our record here in this particular case because this is something out of the six yes your honor i think that issue could be addressed by lexington and their mother so i'm not familiar with those particular particular affidavit or of this particular record this record is just on the twelve b six proceedings between york and e c there's a separate them no your honor it is not plugged there's no allegation that's correct there's no allegation think you just noting that that's not part of the record here but it also ignores the fact that the river or any contractor if they are completing a job could have come back in and said hey the original bid that we acted york failed to act in good faith their claims likewise fail under eighty three of the code a three prohibits failing to promptly provide to a policy holder a reasonable explanation of the basis of the policy in what facts that you work have the duty or authority to provide any explanation they also don't allege that you work denied any client or that it even had any didn't authority or duty to design such a client finally under section a seven which prohibits refusing to pay a claim without conducting a reasonable investigation with respect to a claim you b c is gnowledge facts that you were refused to pay any climb or that allege a definite and unconditional promise by your it also doesn't allegedly substantial reliance on any promise by your work much less that any such reliance would have been reasonable or justified or that it would materially changed its position in reliance on a promise to its detriment rather this theory is a simple attempt to navigate around their policy their contract of insurance with lexington it's an impermissible attempt to expand coverage but if an adjust normally do in a circumstance like this your honor be in terms of their investigation they go out and they assess the damage and then they work with a contractor or with the insured a contractor retained by the insured or the insure themselves in order to figure out a way forward so that repairs can be done yet but they didn't they didn't communicate with the insured well your honor i think i think the medical plane actually indicates that they did communicate with the insured and there's discussion later on in paragraph thirty three where they talk about the pastor and your and york explaining to the pastor that they were surprised that since the season i think it was they were alone and at the skyrocketing cost i think it's also important to point out that the roof or the seas roof or started on this job or york was aware that they started on the job and it's not clear from the record which is just the amount of complaint how long they have been working on the job and how long that work in which foreman stated that he was quote alone and at the skyrocketing cost on a pair i remember that i did not remember the statement the room for had started on the job already yes ma'am and that is in paragraph twenty four their code upper limit which they were aware of and in fairness under texas law an insurer is required to know the policy terms no i understand all that but the thick oh so the extras six hundred or is  i'll try to address all these on the bottle i'm starting with pleading standards and pleading standards basically plausibility you know the stand very well here mr rosen say that just played conclusion and just flood the elements of the claim well what he's focusing on there is the cause of the causes of action there which do as pretty normal in my experience recently elements of each cling but the the supreme court in this court before it they clearly have to list the elements you don't have to have to go into the legal theories johnson skinner it cetera most particularly you don't have to put in that you were facts to the legal theory which is the problem that i believe judgment brian had with this we certainly don't have just legal conclusions i mean we've got thirty three paragraphs of factual conclusion or factual allegations and i think most most we got a far afield in the in that with the questions i think most of what i said facts were facts that are consistent that come out of the the pleadings here about the scope representations that the agreement to do time the materials etc all of the things we discussed are things that are in the factual basis of the pleadings and it's not complied with regional no i don't believe that's something that could have been a leisure without discovering but i don't think there's any reason to because it's plausible for a jury to infer that a roofer would comply with his with his bid if it had been accepted it's plausible that a person once their offer is accepted it will comply with it that's what the law expects they will do that's the ordinary thing but even if it wasn't that's within the scope of things the discovery should say this is normal that the adjusters have a role in all these different parts but i think a jury could infer plausibly infer from our allegations that he had authority here because all of the communications everything he was doing here was through this guy foreman indicate it wasn't accepted the cause of the actions of the work that york did not affects you ate it instead they did exactly the opposite then if we get past that though you could ask about misrepresentations i didn't ever get to those were misrepresentations he uses the phrase specific and actionable is the requirement that he ignores the fact that texas law who normally recognizes that actionable misrepresentations include implied missed implied misrepresentations and include non disclosures if you say something that's technically true then this is the court's in your court access media quip that is says that it's technically true but it's misleading you have a duty to correct yourself to make it not costs are indemnified once incurred they without stating that even though we're in this weird time and materials process you're still subject to the policy loads there was a misleading statements or a jury could determine that that was misleading and led the pastors on so on the stand to testify and someone's going to he's going to say well i thought your promise me that they would cover the top of the upgrade once incurred and then because this time the materials approach that he use the only use once before ever in his entire career is not something that's explaining the contract is not something anybody would reasonably understand and when he agreed to shift this and then made subsequent representations about that the cost would be indemnified or there's a reference to a phone call paragraph twenty five dollars that you told me on the phone that are provided funds for the work required by the engineer i know you told me on the fund would be included just as a insurer is supposed to know the