versus national in union may please the court my name is elizabeth hit i'm here on behalf of the liz unit palance and i'm here along with my partner robert ater morning as you're familiar with the background you were read the briefs your honour's you'll know there's there's basically two issues in front of you one is a contract exclusion that national union proffers in order to get out from under coverage and that particular issue encompasses two smaller issues one whether the contract exclusion applies because there's no express contract which the exclusion requires and number two whether the lose use claims arose out of the contractual liability on that express contract so with regard to the second issue the copelands agreement the only issue before your court is whether whether the whether the agreement can be enforced against national union to going directly to the contract exclusion the words of the contract exclusion say that the insurer the insurer will not be liable for losses in connection with claims made against the insured alleging arising out of based upon or attributable to any actual or ledge contractual liability of allied under any express contract further it is important to note of course that national union bears the burden of proving that allied negligence and securities violations fall soley and entirely within its contract  exclusion the jury found and express contract and your argument is there was no evidence to support that finding yes your honor can i i'm going to list what i think is potential evidence one is they heard the testimony of some witnesses and perhaps disbelieve them there was a financial statement that has said the interest rate which they were told was lying was ten point five and in the financial statements it said that has a three year term they commenced their loan with in two thousand and seven and three years later in two thousand and ten they were informed that no payment would be made on the principle that it that it's that's basically national union's argument yes your honor i'm just telling you is that is that all the evidence i believe but i'll and i will explain to why that's not and yet you tell me that's not enough correct to support the jury yes or i'm so in the first instance the only testimony the only testimony was from diane and doug jacobs they were the only parties to this conversation is telephonic conversation and both of them stated identically we never ever discussed the issue of a repayment date no repayment terms whatsoever the  we don't know to this day whether the repayment terms would include a balloon payment whether payments over periods of time whether there's any kind of of if they didn't make the payment on time the balloon payment is there any kind of consequences to that we don't know any of those because they were never discussed now again your honour's i would say it is national union's burden to show this they came forth with no evidence whatsoever so now what they argued to the jury and what they're arguing to this court is as your honor understood they're going to argue that there's audited financial statements that show that there's some particular repayment term whether it's three years whether it's due on demand whether it's whatever it is but these audited financial statements the liz use never got the first time they received them was in discovering the underlying action these dated financial statements were sent to i say that to the jury they i don't believe they say that to the jury and i can't be one hundred percent sure and i'm of the legend that they testified before the jury diane did she said before the jury the jury had the financial statements right i believe those were entered into evidence auditive financial statement i believe they were your honor ok and she testified i never saw she testify that she never saw and they never showed that number one number two the audited financial statements they have to show that it has to be received if it's an oral agreement and then it's written down by somebody somewhere if there's an oral agreement why do they have to receive that piece of paper because you're on there's absolutely no meaning of the mines again if even if they received that piece of paper which we say they didn't they're actually have the paper has to be relatively clear it has to say you have a ten percent interest rate so therefore you your your money will come do you in three years or whatever it was had a ten point five percent interest rate right because they get that piece of paper yes your honor they did but that with when you're dealing with an express contract that you know they can't rely on is the length of the loan period right that's according to you that's the missing term  when the loan will be when the principal on the loan will be repaid and you say that's the missing piece that is the missing piece and it's not just as simple as just when it will become due again are is there a balloon payment  will the principal be paid out in periods of time who testified about paid on demand that that's interesting that you bring that up the only person as far as the plaintiffs go that say was  demand was somebody from the on a pole skis they are not to lose humans these are completely different actions that were tried together in the same place so that's why the jury could have gotten confused that was payable upon demand but it wasn't since the financial statements reflected a series of loans all with payment periods after which it becomes payable on  demand i'm not sure why that's not a piece of evidence i'm not following in i'm sorry the idea is if it's a three year term that doesn't mean that doesn't necessarily mean that you have to pay at that date it may be after that date you can ask for the principal otherwise the interest is keeps running right a period followed by payment on demand you can't demand payment until the three year period is run i years was a do on demand when was it do we still don't have any answer to that and the point though being that the lose humans had no idea they had no idea because they're not sophisticated lenders that there they ran a mom and pop restaurant they so when even if they were given these financial statements they have to cull through there and connect the dots it doesn't say dear mr mrs lose you and your daughter because you have a ten percent interest rate we're telling you right now that you repayment date will be on such and such a day no documents like that ever came so it's to the extent that that their financial statements could even if we got them show you know a connect the dots kind of thing that does not make an expressed term and again i think an expressed term for repayment of a statement yes you're on it then i would have to say that it would be ok well as it rests enough we know what it is yes your honor its interest at ten point five to three years from date of issuance us in the financial statements is the financial statements and she admits her alone was five and so the question is can the jury fon that they agreed to that i don't and they have a document the financial statements acknowledging who to add a little bit more to that in support of the jury's verdict at this case as this court knows the standard before the court is whether any evidence supports the jury's verdict and we submit there is ample evidence to support the jury's verdict ms lagoon in the jacobs had a twenty year investment relationship with affiliated she trusted affiliated and she didn't hesitate in investing her money with affiliated and she didn't hesitate and transfer in her money to allied for each loan with allied i mean i'm sorry for each loan with affiliated she knew the precise terms of her loan when she went to transfer her money to allied she did so under similar circumstances she knew the exact amount of the money to be loaned she knew her exact for the money but they started a new loan right to start a new loan yes but this is based on in the context of a twenty year investment history with the exact same people and so the jury was entitled to consider the context of all of the evidence so she knew the exact amount of money that was going to be transferred to allied she knew the exact interest rate and a half percent and she knew the money would be repaid allied financial statements present other proof that there were terms of these agreements by the time these are did financial statements were prepared it makes no difference that delusions didn't actually see these financial statements what these audited financial statements serve as is additional evidence proving there were terms mr jacobs explicitly testified that all of the loans identified in the financial statements included and her husband and daughters loans and that  those audited financial statements contained express repayment dates mr jacobs when asked specifically did you say anything anywhere in there that you have five million dollars of loans  secured loans that have no terms no of course not they it was clear by that time that they had terms of the loans so this was affirmative evidence from which the jury could reasonably conclude that the issues knew the terms of the agreement or they had discussed terms of the agreement or at a minimum they had agreed to receive the same terms that they had had previously with affiliated the jury was asked how mr jones and president said they had no explicit instructions regarding repayment day jacobs did say that and the jury was entitled to disbelieve that in the face of contradictory evidence including the fanjul statements that he himself reviewed repeatedly be force submitting those to the i r s so the jury was intitled to consider all of this information and determine which assess the credibility of the witnesses assess the credibility of the testimony i'm cursed with the terms of the prime loans how long to pay the terms of the prior loans varied but the most recent ones that are in the record were she had she had her and her husband and her daughter had invested roughly one point five million ten and a half percent interest rate with a three year term and so had been upon a three year term correct loan before the transfer to ally correct and so when she it was reasonable for the jury to collude after considering the credibility of the witnesses remember mr jacobs conflicted his testimony contradicted itself several times throughout as to whether a disc interest rate was discussed missile issue now expressly contradicted mr jacobs testimony and these two were self interested witnesses and so the jury way is fully entitled to consider this evidence before it consider the audited financial statements and say we believe that from this evidence they knew the terms they knew they were going to be repaid and they they knew that they would be under the same conditions as their prior loan that was a reasonable inference from the evidence that the jury was entitled to conclude and that is any evidence to support the verdict it's evidence from which a reasonable and impartial jury can determine or can reach different results which of course is the standard that this court applies and reviewing the jury's verdict so i submit that in addition to judge recitation of the facts you also look at the history of the relationship between the parties how they had  up their loans in the past the continued relationship the implicit trust misleading placed in allied and her lack of care no hesitation and transferring her money and the jury could consider all of that and reach that decision  as i mentioned it's irrelevant that the genes may not have received the actual financial statements the point of those financial statements is that they are audited they are sent to the i r s under penalty of perjury should they have been and correct and they showed that there were terms there were in fact terms by the time these financial statements were submitted there were terms and the jury found accordingly and that is supported by the evidence which is this court standard  mentioned that we didn't know if it was a balloon payment or when those terms would be or how they would be repaid or the circumstances under which they would be repaid the issue in this case as presented by the lagoon was did they discuss the repayment term and the evidence is sufficient to show or sufficient for the jury to conclude that they did in fact discuss that it wasn't that they had to review the financial statements and those created the term of the contract it's affirmative evidence that they did have these discussions and they did create these explicit these express contracts the do on demand argument is an argument that we raised as an alternative right for any reason argument to the extent one were to conclude that there were no evidence of express repayment dates which we obviously object to and believe the jury was fully supported in its verdict the cases that we cite in our brief as law as well as the statute show that as far back as the eighteen hundreds statutory and common law has held that if if there is no express repayment term in a contract then the law supplies that missing term it doesn't mean that's under the law that's an implied term that's an implied contract that doesn't work i thought you were arguing under express contract from looking at your papers that after the three year term ended they could make demand for payment well we are arguing that as well but i would respectfully disagree that a do on demand term makes it implied because it's applied by law what the courts say and all of the cases about an implied contract an implied contract inferred by the conduct of the parties so for example you have a teenager who starts moving his neighbor's lawn the neighbor doesn't request that he mo the lawn but he nonetheless pays him every time he knows the lawn and so you have something that could give rise to an implied contract because it's implied by the contract by the conduct of the parties that's an implied con tracked in this instance judge rest you're exactly right that after it was over it could be due on demand but also if you look at the statutory the statutes that have been in effect since the eight hundred up until now as well as the case law the law supplies a term and when the law supplies a term it's not inferring the term it is supplying the term son inferring it from anybody's contact con duct it's the law saying this is what the term is there's no missing term he there was a question about the independent auditors or who made the financial statement i believe that was made by the independent auditors that took all and all the information found the terms of the contract and put it in the express agreement so they could collision i believe the questions that you asked her directly on point there is sufficient evidence ample evidence from which the jury in this case could conclude that there was an express contract based on the history based on the terms based on the audited financial statements which set out the terms and that the jury was correct and  hit thank your honor i just want to touch very briefly my my partner just reminded me of this to the financial statements those referenced two thousand and four notes the zunes didn't come in until two thousand and seven so i'd like also to talk about because we haven't yet the the securities claim the arising out of element of this contract exclusion the lesions had a clear cut securities claim they brought it under florida statute argument would be as you read i'm sure the the claim the securities killing does not arise out of the contract it arises out of florida law florida statute so to the extent that there could even be seen an express contract then certainly the securities claims to not arise out of that contract but out of florida  awarded under the securities laws because we had a securities claim and they they said unlike the anna pole ski's delusions have the securities claim so we have no issue with the reasonableness so really what it comes down to before this court is two things the fact that in his undisputed that national union denied coverage over and over and over again it was a clear cut denial that was unequivocal i don't think that national union even argue that in their brief the law is very clear when the insurer denies coverage that's what enables the insured to to take on his own defense and decide how he wants to handle it and enter into a settlement agreement that isn't forcible against the insured insurer scuse me now the one thing that of course the insured has to prove is that it was a wrongful denial of coverage or a wrongful denial of the defense costs and what i argue to your honor's is if there is coverage found another words if their contract exclusion does not apply and there is coverage then that's it it was a wrongful denial of coverage they want to focus more directly on the denial of the defense costs i think that's an almost a side issue as at this point because there was such a clear cut denial of coverage however the circumstances of this are very unique in their denial of defense cost pick was defending allied in it was defending allied through up until almost the end where they entered into a settlement agreement with allusions and allied to cover the claims and only the e u no claims at this point pick calls a national union and says hey i just wan you know we're trying to settle that no claims that we may be responsible for and the d n o claims are going to remain and there's a very good likelihood that allied in the as humans are going to enter into some type of a agreement to settle those so i know what you want to come to the table or what national union said you know what that will quote never happen but it did happen and it did wrap up in one document and we can see that however as pic testified they had no part of the copelands portion of that agreement that was worked out completely between allied and the jacobs and allie attorney wrote to to national union one more time and said look i know you've denied coverage in defense before but what if pick is no longer defending us for whatever reason for any reason at all what if pick is no longer defending us and we're hanging out there alone they came back and they denied coverage and their defense obligations one more time so your honor i think that's sufficient to show that the idea that these were only two thousand and four notes i looked at the financial statements and it basically was referring to all the outstanding unsecured notes at at some point and i don't have it in front of me but i believe my brief in a footnote speaks it in the financial statements themselves i believe it's in the financial statements themselves and i don't even know if i have them with me the financial statements issues whether it says all outstanding loans and the financial statements i believe so you know then the record excerpt i do not believe there in the record actually they were exhibits at trial that were right at the financials yes the allied financial statement and yes your honor document one five seven before so we have addressed all of these issues in detail in our brief and will stand on those i will stand up in argue those now ok but is it one five seven is the right side financial statements were for two thousand and seven two thousand and eight and the sites are one fifty seven thirty four at page fourteen and one fifty seven dash fifteen at page fifteen and and jacobs testified that those financial statements included the testimony it's document one night three at one twenty seven to ok i thank you