good morning your honors and may it please the court can everyone hear me yes thank you my name is eric and i represent the appellant j p ryan foster in this case i'd like to reserve three minutes of my client mr foster was seriously injured and his friend and coworker was killed in a taxicab crash in the morning in january th team after settling the underlying claim for the policy limits of the insurance mr foster pursued this case against the insurer irq which is integrity mutual and so we're focusing in this case on the conduct of the insurer and specifically the dialogue that it had with the we see that integrity is telling the insured through its underwriter that that a proposed dr his name was while quality any have bead had a problem r that's the language of the younger writer and had to be excluded from the proposal the proposal was that this person drive a cab for united cab so that's one example there's another fifty four the page right after where the insurance company through the underwriter again response to an inquiry about another proposed driver it's and they say we need to call our own motor vehicle report on this individual and that individual mr omar must be on not i'm driving duties until that point and then the record later goes on at appendix to sixty three dollars to discuss how mr omar was subsequently determined to be in eligible for a driver position and that determination was made by integrity through its underwriter again what's important about that exchange is that mr pace said he wasn't willing to make any sort of an exception in the circumstances to otherwise permit mr omar to be a discretion and the last example if i may your honor if you look at the appendix page sixty this is the newspaper clip that talks about the accident and you actually have an interview with the owner of united cab who says oh by the way the insurance company approved the hiring of this driver who ended up injuring my client the insurance company approved his hiring as a drive and and we know that under the ordinances that were in effect at the time that integrity extended the insurance policy this driver mohammad deriving was ineligible to drive a cab within the city of the morning which is exactly where the accident occurred so that's where we're focusing on their reliance and that communication their relationship as well between the insurance company and the insurer about who is was working for we're looking at the motor vehicle report that was told by the insurance company that's a that's a lexis nexis search inquiry we see that it was flagged for possible mismatch in and prompted a and that the i have records did not show that and that the only way that we could find this to be actionable negligence is if the insurer of the for the tab company had an affirmative duty to run around the country and of your taste if there was no duty to go beyond the face of the i don't know driving record fishel state driving records then what else to do they have to do failure to find the driving by elation that prohibited mohamed derived from being a taxi cab driver so that then they were up they were not they had a duty not to not to rely on the state of iowa a reasonable jury could look at this and see that their record was incomplete and the violation that was not determined was a driving while intoxicated charge from minnesota from years which he should recognise as necessary for the protection of mr foster and if so that's the st question if so then integrity may be subject to liability for physical harm resulting what's your what's your best case for that for the duty you just disagree your honor i understand the contours of the case the initial point is that case adopted the claim that is in play in this dispute and the constellation of the parties tees this up for an analysis does well on that specific subsection your honor what we see is that the insurance company at the time it extended this policy extended a policy that specifically included an ineligible drive that is a necessary step and it's actually legally required for a cab company to operate in iowa and in des moines at the time that that's the condo and i understand judge darby wrestled with that point as well but the fact is that's the condo they have some say so they have some discretion they have the superior knowledge and skill because they are assessing the risk and in doing all of that they missed the  qualification that is completely germane to what happened here when a cab drivers drunk and interested me so you know that's one point the other point about reliance is also frankly all over this bottle if you look at the e mails and how the the entire case sets up it's clear that united cab is s out information whether it's an assurance whether it's advice whether it's some kind of double checking i don't know but it's clear that they're over looking and checking with integrity before they're even proceeding with this cabdriver it's a necessary step it's a prerequisite to having the individual behind the wheel so there are at least a couple ways where a jury could look at this and say there's a fact issue about whether or not the duty of this breach whether that breach caused caused any harm and the extent of the damage and while we understand and agree with much of what will judge jarvis said in his decision where we think he looking at the dialogue between the insured and the insurer which was facilitated by the underwriters so so that's that's in their record and that's really the basis of the claim and also what's at the appendix page sixty good morning your honor may i please the court my name is roger echo barry i represent integrity mutual insurance you happily here your honors i will not repeat what you've already read in integrity brief i would however like to address a couple of items that are raised for the st time in appellant reply brief st appellant has switched their theory of the case from that which they asserted in the trial court and in their opening brief now they claim that the actionable conduct on the part of integrity was in issuing an insurance policy and after issuing the insurance policy not restricting mr dury a's drive but in the complaint as integrity preferred and they say that our preferred source for the m b r didn't contain it may explain our breach but it doesn't excuse it but there is no evidence in the record that the lexis nexis provided m v r did not accurately reflect mr various complete i would driving record the only evidence in the record of mr dury a minnesota conviction from two thousand and twelve was provided by appellant counsel and they obtained it from a minnesota court web site there's no evidence that it was in the iowa m b r and i'd like to point out another thing they refer to integrity obtaining the undisputed facts in the record are that m t r was submitted to integrity along with united application for insurance so they want to follow integrity for discovering something which was not there to be discovered there could have been no negligence when the nearly four year old dui or four and a half year old dui was not on his driving record and that's simply not just circuit one hundred and seventy five dollars and in that case the first like appellant does now for the st time on appeal argued that they relied upon the insurance company to conduct safety inspections appellant here now claims that without evidence or even records cite that mr foster relied upon integrities vetting of mr there's no evidence that mr foster even knew integrity and existed and that's true of the injured party in the tillman case as well but similarly in the tillman case a worker was injured sued the insurance company because the insurance company had conducted some safety inspections and provided recommendations to the employer and the little th circuit found their compliance is not reliance it's vehicle records but that was not all they did they provided advice and there was evidence that the insured relied upon that and scaled back their own safety program there is no evidence here th united cab in the two and a half months or less than three months this policy was in effect stop obtaining in their own m v arced stop conducting criminal background checks on their drivers or did anything in reliance upon any action or inaction of integrity to run or in short there was no duty here at all the district court assumed that without deciding it but even then the district court correctly found that plaintiff could state no cause