district court's order granting a motion for judgment as a matter of law for their failure to submit any evidence of bad mr mr these owned a home that was destroyed by fire on may twelfth two thousand and six the home was located at forty nine thirty one collects them in st louis missouri they had a home insurance policy with allstate insurance which covered their personal property for the amount of thirty thousand dollars  their home for the amount of sixty thousand dollars allstate requested from the mr mr theme a list of personal property that they lost in the fire and they submitted a list of what they believed to be the property that they lost in the fire which totaled ninety four thousand eight hundred twenty five dollars there klein was only four what their policy limit was a set in their insurance policy in march of two thousand and fourteen we filed for breach of contract and they say she is refusal and the case was tried on september the sixth two thousand and sixteen and allstate was granted a motion for judgment as a matter of law it is our position that we provided reasonable and competent evidence of value they listed the property bag yes that's the replacement value because everything was totally destroyed in the fire alone with that base the made it we made a pitchers of the far so that the jury would be able to see the damage that was done to the material that was left there and the damage that was done to the property was so when you see replacement value do you mean that the price or the dollar amounts listed were the amounts it would take to buy a new pair of pants or whatever the item is that was listed they were estimating what they felt was the price that they paid for what they paid what they time they thought at the time that they bought it so what's your position on depreciation so to speak and how that should be figured into the analysis depreciation can be figured into the analysis for the property that was not new this was a mixture of couldn't come up with a valid number if you just told them how much the people paid for the items when they bought them what do you have a response to that because i think that's really what it comes down to on the property i think of property i think it's your reasonable jury can look at the value that they assess for those items because you is also purchase items they are they are in the they have those same household goods so they have a  when we talk about the real property because mrs these was involved in a bankruptcy the bankruptcy petition was also admitted into evidence was indicated the value of the house on the depreciation are you saying that it would be a just simply a jury determination without any additional evidence except how old the item and it was their evidence of well these towels are ten years old crossed on the list and they gave examples of the age of the individual items on the list i didn't do it item by item but i think in two i don't buy i don't they would just randomly they looked at items on the list i thought they might go ahead oh i'm sorry because they highlighted certain things on the list and they commented on the things that were highlighted on the list i thought it one point says he said something about ten or fifteen years or ten years the stuff had been either purchased ten or fifteen years ago or gathered over ten or fifteen years something to that effect she did it career so i suppose a jury number that they submitted the personal property was only insured up to thirty thousand dollars so that was the limit in the policy so nothing could could go outside in payment above that limit  we feel that even if allstate had a controversy over the personal property claim there was no controversy over the the real the fact that the house was damaged in the fire and that there was no indication that the this had anything to do with the fire we know that the the fire was say about that person who was subsequently charge thank you good good morning your honour's and may please the court robert brady on behalf of all state of course our position here this morning is that the district court's judgment as a matter of law and  both claims the breach of contract claim and the vexatious refusal claim should be affirmed i'd like to start with the breach of contract claim and that the first thing i would say about the breach of contract claim is that the proper measure of damage  pursuant to missouri statute missouri is partial fire last attitude and also pursuant to the insurance policy which is consistent with the partial fire last attitude is that the proper measure of damage is the difference in the value immediately before and immediately after the fire loss and there's a long line of cases interpret in the language in the partial law statute which is three seven nine point one five  the language of the insurance policies last settlement for vision the first thing i would say is that with respect to the measure of damage to the extent that that's disputed and it appears that it may be from the briefing here at trial there was no dispute as to the measure of damage and the appellant said trial tendered a proposed damage jury instruction which set forth what we believe to be the applicable measure of damage which again is difference in value with respect to both the structure and the personal property so i don't think has any real dispute here as to what the proper measure of damage is alright well then what are we talking about sure how are you can calculate because i think mrs east testified the stuff on exhibit dam was all destroyed if we want to talk about the personal property first you know why that well i would say that would let me let me just pose a question about it because my concern is she testified all the things on exhibit m were destroyed so we know the value after the fire was zero if you take that as a given for my question you may mean i think a jury reasonable let's say a jury maybe reasonably could infer that she said that and so and so then she says at another place that these things have been gathered over that she'd had them for ten years over ten years well with are you saying that i have a family that has their house burned down and is trying to get a recovery for blue jeans and t shirts and towels or they asked to have an expert come in and say how much a towel is worth after ten years or can a jury just like it would can a jury just use common sense and say well this towel was purchased for twenty dollars ten years ago and will give them five dollars for i'm not saying your honor certainly not size and jury supposed to do it i'm not saying that there is expert testimony necessary as the court is very aware and owner of property whether it be real property or personal property is always competent to testify as to value there's no question about that and the way that they're supposed to do it in the way it's always done your honor  very simple questions mrs e s do you have an opinion as to what the value of your personal property was immediately before the fire yes i do what was it mrs eason do you have an opinion as to what the value of the property was immediately after the fire yes it was that's the way that it's done in every one of these cases your honor it wasn't done here it's that simple with respect to that simple it would have been submissive bookcase if they had asked or give us your best estimate as to how much this was worth before the fires that it was worth x and then they were all destroyed so they're now worth zero yes of what i would have been a submissive that what if she would have given a her best opinion as to before value which she did not know or anything remotely close to it but if she would have done that then yes as to the personal profit a jury can't you don't the good jury can say well i donate stuff to goodwill all the time and i know you know we get tax deductions for used clothing they can just honor and she's the she's in the best position to to make that opinion the jurors don't own the property she doesn't as you as you pointed out during your questioning of mr christmas you know you have a list here and you have  able to calculate depreciation but she's a she as an owner she is competent to give an opinion that's what the law is and she did not give that opinion your honor i mean again the only evidence of value as to the personal property that was submitted was this  exhibit and which was the personal property inventory forms that were submitted we've heard two different things about that but i think what i'm hearing this morning is that what they're saying is this is what these items cost when we bought them whenever instead at the top of replacement cost well and that maybe were some of the confusion stems from judge you put in that exhibit him right for starters on the cross examination i thought issues you put in the last yes or all the stuff yes and it's been a while since i looked at it it said replacement cost right there is a column that says replacement and that's where the numbers were right that is correct is that the only values are on that form that's my memory sure ok yeah i'm sorry no i didn't i don't know if you had a question on the floor or not your honor but what but what i would say was that whether we're talking about replacement cost meaning what would it cost us to buy this after the fire or this is what it cost us back whenever we bought this stuff and neither one of those constitute the actual cash value immediately before the fire neither one of those numbers meet that burden in my opinion  so i don't think that there's sufficient evidence at all with respect to the before value of the value of the personal property immediately before i think the district court correctly concluded that  that there was sufficient evidence of after value because there is although i think there's a at a minimum conflicting testimony in that regard simply to the effect that not all of the personal property was destroyed and also not all the personal property was even in the home so i don't think there's sufficient evidence of either but but certainly not before value now with respect to the house there is no evidence of the value immediately before or after we've now heard for the first time on appeal that the appellant's want to contend that the bankruptcy petition that was admitted into evidence by allstate to cross examine on the fraud issue is somehow evidence of the before value of the home the only thing i would say to that is the filing date on that bankruptcy petition was one year and nine months before this fire occurred so that's not evidence of value of the home immediately before the fire and even beyond that i think it's a little disingenuous to say when this exhibit was not referenced in that context it wasn't admitted by the appellants at trial for that content you got it in right i we put it in on the issue o quickly the vexatious refusal claim and i think it's because my time is running short the only thing i can say this work when a person has their house burned down and they want to get paid back for they want to recover for the replacement value of clothing say and they don't have receipts from every pair of blue jeans and they bought and they don't have photographs of every pair of pants in the closet they go to you and so they go to allstate and say we had you know ten pairs of blue jeans while they're there as a base intentional misrepresentation and fraud your honor if i were to answer your question and again i'm running short here but if there is no coverage issue and you're asking me how does this work yasu mean there's no coverage issues they present they present the personal property inventory forms all state reviews the forms suman no issue with the forms the payment is initially issued on an actual cash value basis all state is the one that  ruling was based on valuation we never got that right we never got a point we never got that far but but again the and i know i'm beyond but the burden and you know you know i normally they could send in what they send in exhibit m to you in there if there was no fraud issue you guys would all state would run a depreciation and send him a chair make a percent of a check for actual cash value and then if it's replacement cost policy if they actually go out and replace then they get the recoverable depreciation but the judge that's a whole lot different than in front of a jury in a fraud case and having the burden to present damage evidence and not doing it i mean that's to me that's two totally different things here let me i've seen cases where they'll plop the contents adjuster up on the stand in the plaintiff's case in chief and say you know you tell us what the value of this stuff was before and that's the evidence of it they get it in through and through the allstate representative ok so thank you for  clients were x to indicate the loss that they suffered as a result of this fire and that's what they did they issued they indicated on the list everything that they lost they were well aware that their covers was only to the limit of thirty thousand they will only do it what they were x to do by the initial is ca is to itemize the list of things that they lost they were not told itemize a list based on your coverage of only put up to what you feel to be thirty thousand dollars they were told just a list of what they lost and that's what they did and they listed the value based on data and they waived his the paid in that the contract that they had with allstate insurance company would be  after they suffered the fire and i think that in the evidence was submitted for a reasonable jury to make a determination of all value in this case based on the policy and i would add that you reversed the district court's decision thirty tomorrow morning