that this was not a full trial this was done because there was concerns about the cost of gathering evidence as to damages and there was while there was still a question of why ability the as a result this particular trial or course of the trial was simply about whether or not the state farm could prove their affirmative defense that my clients had not done their best to protect  for it to work to keep in mind as we proceed that's a burden of proof here was on the defendant because they were trying to prove their affirmative defense now and there's  protector trial there were only three witnesses one was william wells who was my client one of the plaintiffs we put up an expert and then state farm put up one of their employers who was in charge of the case at the time  and i said that time the time of the trial not the time of this particular event and that particular person testified that she had never vested the side leverage specte there was no evidence that she ever spoke to the plaintiffs so everything she had was nd hand from a prior investigator and really and truly i don't think she added anything to this case so apparently it was decided totally based on my client's testimony and our expert now what there's a case comes down to and i had my reply operat time do we know why there wasn't enough heat and then and the answer to that question is no we do not that has been ashamed by the tr and i think state farm ashamed it from the beginning but there's no evidence of what the actual heat source was at the time these pipes froze because we don't know exactly when they fr mr wells testified that the hitters were running he won't buy the property he left the water dripping with you we've all done before there was no problem and when he returned true or three days later the place was flooding water was spewing everywhere so when exactly in that time span these parts froze we don't really know and we don't know what was occurring at the time now the standard that we agreed on here was a standard  reasonable wish state farm had a clause in their policy that should you must do your best to protect the building what's your best years i think is a ship very subjective thing depending on the circumstances so we need to understand what the circumstances were in order time and whether they did their best and we don't really know for sure what circumstances were i raised in my brief and i raised it to the court on my motion to reconsider and it pointed out to them  but by the same token to assume the power own is own is speculation certainly the evidence tends to suggest that there was something that went wrong here that should not have gone wrong our expert testified  he came in and he looked at the heaters he looked at the plugs he looked at the breakers he determined that each heater was plugged into a plug that was on a sep  but your client testified if i'm correct that he had done this and that the three leaders were blowing the circuits what do you say about that and that i think is something funny and the electricity wasn't on when your expert came out to look at these circuits right that is correct so how did he know that they were working properly and electricity was not well he said the these things that you put into the plugs to test if they're working right they have b s the fi says i don't recall where you don't have to have the power on in fact it's more of a danger to have a power on right all he didn't find any problems with it at all and there was no contrary evidence that for my client testified he'd been using this for years with no problems so what made this one reasonable at that point in time  and this is for the court my assumption and i think it was five she was there findings when the judge said the space heaters where they only shorrosh heat source at froze we don't know there was any power own at this building at the time the pipe for and we've all probably experienced situations in that when a timer you know a transformer somewhere down the road goes out and the power goes out it happens all the time but that was the evidence seem to suggest that that's what happened because the lady that testified for fat farm  there was no evidence of why that happened she admitted state farm didn't have a clue why that it happened and it made it that there was a possibility that the breaker could have been tripped by water spilling onto the onto the p so the space that we're talking about is that the only space that contain water pipes to the best of our knowledge if it was certainly the only place that had perfect likes but the policy says it was your raise that issue not to my knowledge not to my recollection they're all concentrated where they come into the building and i've seen that when they go over have to go under the water heater and then the bathroom in the kitchen area  said that plaintiffs chose not to heat the entire building but rather only provided he just certain rooms that they believe contain water pipes why is that an issue in this case or is  it i don't really think it is an issue but if it is it certainly goetia the question that they were trying to do the best that they could do to identify where the cracks were and make sure that those areas of the building were adequately heated so you know i think when you talk about a person's best actor said it should directive and depends on the circumstances and if in fact this had been due to a power outage there's nothing they could have done because if that i had and i and i quote judge sanders and his final order denying my motion to reconsider that he called lameness on the planet plaintiff's use of space heaters knowing there was not an adequate working furnished in the building is that going to be the standard this court stretch because any time you have a pot any time you have x rays if you don't have a power outage or maybe even if you do are we going to set a standard that says you should've seen this coming you should have seen a power outage  but that was not the standard we agreed on a standard was what it was reasonable given the circumstances and these particular circumstances had always worked before there was no indication there was any reason to suspect it wasn't going to work this time and given the experts testimony you know this is a man with forty five years experience in electrical contractor and i h v a she contractor is now  reasonable that what an expert of forty five year said i would have been glad using for my building is now unreasonable because that's based with a decision that we had here there were other things that i just don't know  to use an extension cord for one or more of the haters there was no evidence of any up listen to not work properly the only evidence of any breakers previously blowing was one attached to the st but there was no evidence of any plugs or outlets not working properly and in fact the testimony about the extension cord and as we all know most of the time our out listen to protect a room or o you did not want to plug two of these shooters and the same circuit used an extension cord to make sure that he got to a plug in another room that was on a separate circuit from the others so and was this exchange that went on between defense counsel and your expert right there what and that was and in fact at one point judge sanders kind of cut that off because they were trying to present only witnessed at one point to deposition and she admitted this trial and testified that she thought the extension cord is what caused the fire so this is how disconnected she was to the case she had one point but i don't know why that would be an issue since we didn't have a fire well but regardless nobody testified as to whether it was a violation of the code except mr bristow i mean saying that he tried to testify to and somebody shot this car if you used an extension cord that would have been very relevant we probably wouldn't be here at all but in this particular case sure you know and in fact there's no evidence that was presented that indicated that the break or the sanders just at the time he's talking about is when the water was turned on not clinton the damage was discovered and your client i think said there was a two to three day period between the time he last checked and he found the water satirist correct and was there any testimony about the temperatures within those three days mr welch tried to testif some objections to it but the night that he went over to check on it was supposed to be the coldest night they said that was his understanding there was no actual evidence presented as to what the temperatures for that three day period there were not so that's why i say i think you know how person can show you did not do your best without knowing what all the circumstances are well let's just be honest when did you think your burden shifted to them as i understand that the burden of proof on an affirmative defense is always on the one presenting the defense and  one i believe the court used the appropriate standard of reasonable this case which is is what the parties agreed to in number two there was sufficient evidence within the record for the court to determine th plaintiffs had not done their best to heat their building because they had not acted reasonably under the circumstances by heating it three space heaters in the dead of winter now it terms of the facts there are a couple things i would like to point out  talk about some of the facts i want to present because i think some of the information that was just conveyed to the court is patently incorrect for one mr sanders pointed out that there was no evidence that there were any pipes in any other area of the building which is just not true if we look at pages one of the two and one of the three of the record of proceedings there was a discussion with mr castle on oh about the fact that there was a back bathroom building where there were no space heaters place where there were water pipes there were on it exterior wall d and i don't think that that really that's really not a material issue in the case and i don't plan on making that part of my material part of my argument but i think it's important for the court to really know truth there wait a minute here you know i was asking about water pipes and now your timing there was a bathroom pipe was that even mentioned by you i saw then in your cross examination of the expert in the reason that i didn't call mr castle i will or mr wells in my own case is because i stand with what i needed to prove my case within the cross exam and there is plenty of law in illinois that suggests that you don't need to call your own witnesses if you can meet your burden of proof with the information obtained on cross i agree with that proposition of law but that wasn't really my question why i apologize your honor my question it seems the record at least that you and everybody else including the court focused on this area that you drew on the diagram when you had the expert put the check box never thank you focused on this approximately four hundred and two thousand four hundred and fifty foot square foot area as far as maintenance of the space correct in that is now the bathroom that you just described is that outside the area that we're talking about it is your honor that's why i wanted to point out i don't think it's material to this court's decision but i did ok now that what mr sanders just represented to the court was not true that's why i wanted to bring  thousand four hundred and fifteen or whatever the diagram is if you would because i think that's where the best maintenance issue comes out or am i wrong no i think you're right judge and i apologize for that i just wanted to make sure that we used prior for mr wells law practice before in two thousand and nine he was no longer practicing and they had two years they didn't use it other than to store five there was no running water and no power in the building yet in january late january of two thousand and eleven they decide they're going to turn the water on it to begin the coldest part of the year only because their son needs to come there are periodic we do a little bit of work and and at that time now mr sanders sr has talked a little bit about this this furnace and how it was a dependable but part of the testimony of mr wells on cross exam was that it was tripping breakers around the area where the furnace was located he did not know whether it was the furnace itself or whether it was some of the other outlets around that area were eventually their worst there were space heaters  honor isn't in the reason that we think the judge a proper apply the appropriate standard is because we agreed to it the standard was reasonable it's and there was no specific yelena we cases on point on this issue and that's why we look to some other jurisdictions and including the western district of arkansas law has the case called somme rob versus lafayette insurance company which we've cited in  and inside iraq the issue was whether or not a hotel using what they called a cross heating system had done their bets and the court pointed out that even when you could strew the language against the i'm sure it still requires a reasonable standard and good faith and sound business judgment in this case the evidence a stablished that that just was not was not want to place and what i would like to focus on to is the fact that under the manifest weight of evidence standard judge sanders decision either needs to be arbitrary contrary to the evidence or that it's obvious that another conclusion should have been reached and that's just just not the case in this situation from day one and it kind of jumping back to where we met our burden of proof with the facts in this case the other the other issue was there was a heated pump system that was working in conjunction with the furnace that was the original design of the heat system and the heat pump had been stolen and they never replaced it then the heat the furnace he admits it was not the pentacle it was it was not working any d never check to see whether it was working at the time even though there were these other opportunities for that for that he precious why is the furnace so important if you can adequately heat their hypothetically assume hypothetically you can adequately heat the four hundred and fifty square feet of space with three space heaters why is the furnace even important that well i would i would say two reasons for one mr cast a lot o himself  emitted that it is not reasonable to use space heaters long term to heat a building and in fact in his testimony when i asked him on cross examination he said it's not the best and no it was not reasonable to use the long term that's really the issue here but what are you saying three days is a long term actually he said more than a couple days would be long term and their plan was to use this for basically heat for the entire winter ok i asked him question in your opinion it's not reasonable to use space heaters long term to heat a building it's or it's not the best you actually uses the word the best no and i said you'd agree with me if he says answered yes plaintiff is never responded to that testimony the other issue too is even no cast the lotto has said that he wanted feed of his own building or felt comfortable doing it he had made a bit in forty years as a construction contractor he had never ever used space heaters for more than a day or two and we know just from mr wells testimony alone he had these heaters in place for over fifteen days and now the other issue there is that if if he d had it for over fifteen days and there was no raising of the pipes isn't that really against you as far as whether you're doing your best to maintain when you have a furnace that you know is breaking up the circuits what what do you want him to do to maintain the building and then try to keep the pipes warm with space heaters what options were there well st off i should say that trips a breaker it only heats three hundred dollars square foot which is less than the area that they need to heat and that's what happened in this case it's well how do you know that's what happened well mr wells admitted that after the fact he found one of the breakers don't know but as as we started in our brief the case of us minerals versus license processors any doubts about the facts are resolved in favor of the a and it's presumed in a bench trial the judge sanders reviewed all the evidence he needed to make this decision but st off ok let's look at bill scenario it's true that when i asked this question what evidence is re was an inspection done by this individual carl johnson and i'm looking at twenty seven of the records where he did a supplemental inspection and went to the building temperature was approximately forty if your own insurance adjuster found that to be true why one should have called him to the stand to talk about best main maintaining of the building i mean he did his own inspection of the plane as put the space heaters on in fact i think your your insurance investigator noted that one of the space heaters that was broken was still in the premises for him to inspect but is there any reason to refute what your own insurance adjuster found in the agree that because plane of stipulated and i think you enter a deuced the foundational testimony that this was indeed a business record it was made at the time etc etc i saw that in the record you agree that this information is in the record you didn't call this individual take his deposition or do anything but this information nevertheless is to be or can be itself would show the judge saviour's decision was arbitrary and i don't think that that comment by mr johnson would be completely inconsistent with our position other than we did have him explain that further at trial  i don't think that creates a situation where judge sanders has it ignored what concerns me mr brown cesky is huge in a lot of testifying at trial in your cross examination you were quite adept and i have to compliment you on that you know you ask questions about isn't it true the national fire code says this isn't true that  space heater recommendations are this but you never followed up your cross examination or your attempt at impeaching the credibility of their expert with your own factual testimony and if i think the case law is still that if you make such suggestions but don't follow it up with your all witnesses then we are not to consider the cross examination as evidence isn't that still the rule i'm not aware of that rule your honor a lesser be something that contradicts it now the fire protection issue the judge did sustain be objection on on those issues and the main reason i was trying to go there was just to suggest that as a whole in the industry space heaters are not something that anyone views is a long term heating solution it's one thing for a few days but to keep it in your building in the dead of winter as the sole source of heat is just is just simply not reasonable in my squirrels i'm sorry that's my point mr chef ski i know what you wanted to prove but unless a witness agrees with you when you ask the question isn't it true that an extension cord should not be used i think he said well it depends upon the size the extension cord and what you're trying to plug am so you really never got what you were looking for i think but you never let anybody just say well you shouldn't do it this way are you under the extension cord issue with the judge to stay you know there was no reason for me to go there anyway and the other issue with the extension cord we're not really looking at here is mr cash a lot of those examination he didn't even know that the heater  replug due to an extension cord in fact i paged or ninety of the records he admits that mr wells didn't give him all the information didn't tell him one was flooded with an extension cord so he didn't even examine the outlet  that you asked whether he was actually told that by the plaintiffs and if i'm wrong on that but i do remember the he said the wife didn't tell him that because again you were trying to get him at his credibility although i'm not sure why that mattered whether there was an extension cord or not as long as he was putting it into a different outlet all i'm saying here is it was your burden to prove that he didn't do the best to maintain and that's why i'm asking these questions i i don't understand why you didn't call somebody to talk about what you wan talk about well like i said your honor when they make the admissions that you need including the key thing mr castle on with meeting it was not the best it was not reasonable mr castillo would meeting he would have never are has never in forty years done this in his building mr wells admitting that these circuits weren't working properly the furnace law isn't working properly the fact that they did this in the dead of winter  the circumstances why do they even need to have the war i mean the whole picture just smells of why you know it in it why could they didn't even need it when the when the adults would go i'm sure i see that my time material because apparently those pipes didn't break there all the damage was in this one area where the spatial years were so nobody ever considered the material and there may have been another one that i don't i don't believe that's what was testified to mr wells was no longer practicing law but he was working with credit counseling for bankruptcy and i believe his testimony was just they kept their files in that building that him and his wife would come in there she helped him that they would come in there work a couple of hours at a time maybe once or twice a week so this building was not like it was a bend they were only regular basis but it wasn't a law practice anymore well the issue is really whether the water had been turned on i don't think i recall the testimony they turned the like it was just sitting there for two and yes it was turned back on for the son because he was doing some construction the idea that the furnish was tripping breakers in the area i don't recall that testimony and it would fly in the face of everything i know i mean i was a building contractor for thirteen years before i became an attorney if you have some kind of electrical device you know furnished by state or whatever and there's a problem it's going to trip the breaker it's attached to i never heard of a device trip and other breakers other than the one it's attached to so the idea that the furnish was tripping affleck's there was no testimony about that years successfully you think that burton here is the best you can do under the circumstances or the best one expert that says this should have been sufficient should think and willing to use it if it was mild though and how could one come to the conclusion that that's unreasonable because that's exactly what the standard was recently if they wish it means judge sanders had to find that what my client was on ration and given the circumstances of the past how could this possibly have been unreasonable