make you mike wilson and i represent mary lou mcluhan who appeals to the district courts grant of summary judgment in favor of her automobile insurer farmers insurance company let me just say i apologize for being late i stepped out briefly during the pat last argument in entering summary judgment for farmers the district court impermissibly resolved multiple factual issues in favor of the movement farmers to find that mary breached the cooperation clause of our auto policy but ican in to produce a duplicate medical authorization and medical author and medical records that she had previously produced and to agree to a set for an examination under oath at some unspecified future date after farmers recollected her medical records and had them reviewed by an expert farmers  requested those things on april th two thousand and eighteen which was well after farmers had already determined there was coverage for mary's claim back on november th two thousand expiration of our time limited settlement demand and by farmers self imposed deadline to respond to our demand the district court further found strike that the district court at least four probably more supreme court cases foremost among them weaver versus state farm and treasurer versus state farm and weaver correctly notes that you know these forfeiture clauses in insurance policies are intended to protect the insurance company against fraud you want claims or claims that have no merit they are not intended to be some sort of a technical escape hatch by which they avoid their obligations of the policy older and that is exactly what happened here from a legal standpoint it's our position there was no duty for us to cooperate under the policy after march th of two thousand and eighteen because farmers had b shoulder only two thousand five hundred dollars that was on top of one hundred thousand dollars that we had collected from the liability carrier so farmers valued the right rotator cuff at ten to five  when we made the claim for the left rotator cuff they offered us only something and i'm using round numbers now something in the neighborhood of four thousand five hundred dollars which of course makes no sense whatsoever and even farmers had had said it's reserve at ten thousand dollars so they had determined that the value of this claim was worth well more than they have offered but they did not offer that money to us not that we would have taken ten thousand dollars but it simply demonstrates they were in breach during that stands for the proposition that what somebody sets as a reserve may be used to establish a value to show some sort of misconduct or bad feet on the part of the insurance company can say that seems pretty among other things the court went through and said that the insurance company there had bagged the claim at fifty thousand dollars but did not offer that a man and that that was evidence of an unreasonable handling of the clay but no nuts reasons for stablish ing a reserve on a case that had nothing to do with the case itself including tax considerations i don't disagree with you one bit i don't disagree with you once again though i come back to you they value the rod at one of or twenty five dollars and the left you know it forty five dollars so they were breach of the contract you know delay in payment on some like that breach of the contract which excuses us from a duty to perform over and over the course said will marry bant remain bound by the cooperation clause that farmers had rendered a decision on the climb that's contrary to the record they told me in november of two thousand and seventeen we've completed our investigation after i gave them everything they asked for and after they confirmed it the court said well they needed to reopen the investigation because of the size of the claim as set forth in our march th two thousand and eighteen demand also contrary to the record previously we had demanded five hundred thousand  thousand and eighteen demand it was only for four hundred and fifty dollars items lowered it based on their suggestion that you know we they wanted to negotiate a put the time limitation on it so that was the least amount of difference between the parties so the court just has that wrong the court said well they needed to reinvestigate the claim if you read carefully kyle's deposition testimony he said he sent out to his lawyers to fortify his position in the event of future litigation that's  she ations were over as of march twenty nine and they didn't ask for this stuff until april seventeen when farmers lawyers got it the court said that well you were implicitly suggesting that there should be further upon which this duty to cooperate is based they're wrong and we're entitled the benefit of the reasonable inferences and the favorable evidence of farmers is not farmers also has to prove that it was prejudice well farmers one prejudiced one bed they had all the information they needed back in november to determine there was coverage which they did and assess the value of the claim which it did they didn't need this stuff if they asked bourne sort of that proof is to some degree in the putting they asked for a duplicate medical authorization they never used the medical authorization we had given him they asked for medical records they called out specific records and that april th letter to me they call records they wanted which is the exact same records can khalid asked me for back in july and which i had supplied to him and not coburn if you put those two things up side by side you can see that's exactly what happened over and over the course says when they need additional documents they needed additional records what did they need there's not enough counsel why wouldn't i wouldn't be unsure be in time to have an opportunity to dress directly the person who's claiming did it they don't get to simply delay the disposition of the claim by relying on these policy provisions they could have farmers could have asked for examination under oath back in july of two thousand and seventeen we st raised the issue and at any point up through march th or arguably even up to march twenty nine but instead they let our deadlines go by and then they come back and say oh now we want to do this to to delay the disposition of the be requested are required months i don't think there's anything dead on point about it but it's you know hornbook law that i'm entitled to make a conditional offer to resolve a claim and that's what i did and they didn't satisfy the efforts to settle the case and after they breach the policy once again by not paying the claim or at least offering as much money as they themselves believe the claim to be worth otherwise this could just go on indefinitely i mean basically i'm paralyzed for trying to resolve the case short of litigation so i don't think they can do that not to mention they were prejudiced they had everything they needed and they have not identified anything in particular that they claim that they this is a bunch of conclusory language in their brief about it was critical that we talk to are etc etc it's a under insured motorist case ok it was undisputed somebody backed into her and they had all of her medical records and expert and well or is there still an underlying fact western about the the left shoulder injury and whether or were what they were and their it i mean i don't i don't see this is just sort of just cut and dry without any reason to talk to me i guess we're the right folder there's not a whole lot to talk about but that left shoulder seems to me to have both questions about etiology and other can you know contribute factors i don't i don't disagree that judging them our point is they had plenty of opportunity to do that months and months before before they send it out to their lawyers and which mary lou not going to be able is all that stuff in the medical records i mean and really if you it to your point judge if those things were important and if the situation as mary had an opportunity to explain it was important you'd expect to find now that were on appeal then a citation to or deposition that says oh we had all these critical questions here's what we needed to know and it's not there because that whole examination is simply a smokescreen and we keep or talks a little bit about that in the context of an affidavit all of the conclusory type things the last thing that i want to say d on the front of my argument is that farmers did not establish and this is what i'm really talking about the exercise of reasonable diligence to secure this information they had every opportunity months and months before every april th to do so and they simply didn't do it and that's one of the things they have to prove in order rely on this cooperation clause alleged cooperation clause beach and at the in the cases also say whether the after d sized reasonable diligence is a question of fact and the district court's opinion doesn't even address that issue there is no finding that farmer span and strike at that farmers exercise reasonable diligence and absent that summary judgment is simply inappropriate and while the eastern district of missouri stated they enable the insurance company to possess itself of all knowledge and all information as other sources of knowledge in regards to facts material to their right to enable them to  upon obligations and to protect them against false claims in the roller case the american modern the image it was stated this is very recent and two thousand and fifteen and ensure has the right to quote complete investigation of the claim including examination and the insured failure to assistance in the investigation close coverage now that's true then is to move why would the person be reasonable in thinking that when you tell them that you've completed your investigation t see exactly what that means there are no additional steps even though you list that you have the right to request you will if you haven't done too and you tell them you're done why does that mean that you says this letters to advise that we have completed the evaluation ok and so what does that mean they evaluated the records that were submitted that date and and and made an offer ok now that the court the follow up on that and he says if additional treatment has been received please provide copies of the applicable medical bills and records or provide a signed medical and authorization and list all providers i would be eight i would be more than happy to request the copies for you  and these can continue settlement discussions went on and so d we can draw the line and say ok we've made an offer on a claim all right there would be no settlement discussions at all if every time somebody made an offer the insurance company made the made offer terminated the claim all duties under the cooperation provisions all duty on the policy seized at that point because they made the st offer and continuing settlement discussions i don't think that's the law they don't like to any cases that say that and i think it would completely d rail the process of negotiations of insurance claims if insurers were no longer held responsible for the cooperation conditions of the house because the insurance company made an offer saying based on the records we have right now we've completed our investigation here is our offer that's just simply not the law and it's not it doesn't with the facts of this particular case where they continued to make negotiations and offers back and question and if reasonable persons can disagree as to whether that happened it ought to be submitted to the jury under missouri won of course there are cases that do that and so the question is why are they wrong on that the does really is something the j i call immaterial factual disputes but they argue that it was improper for judge stacks the determine the reasonable diligence and substantial presence of a matter of law ok they said that this is a fact question and and but i think it completely contradicts the missouri higher holdings of kenyon there is supreme court held otherwise it is typically and i think knowledge this typically a question for a fact finder whether an insurer provided notice to the insurer within a reasonable time and whether the insurer suffered substantial prejudice as a result but when the facts bearing on the issue are undisputed which is what we have here as they are in this case in which both sides asserted a right to summary judgment on the premise that there is no undisputed facts that w such a judgement than the notice issues reflect questions of law so what exactly the situation we have here is what was in play in the missouri supreme court in the firehole this case the plaintiffs in this case that they were entitled to summary judgment  on an you're not of cooperation defense because the facts are here all the letters are understeer that the letters were sent they were received the question is that as a matter of law what is the legal significance of these facts all right and under the higher holding case it's for that the judge can decide these things when there's no factual issue for instance if they said hey the letter that was sent by mr walt and april th seen we never got it we didn't know anything about that letter we didn't know then it goes to fact question that they received a letter did they not receive the letter those types of issues but they just simply there were no dispute the facts in this regard i have the same point to be made go ahead i'm sorry i'm i'm just thinking one of the history and the claims match when history was made available to judge sachs to review in camera then decided which parts of it if any of it were never going to be produced and and kept kicking around in my mind  at that point that's not an issue on appeal that was raised but you know i think the issue there was what was privileged and not privileged we submitted letters that we've sent our client you know is being privilege in the of things after a certain point and that was what he was trying to decide whether they had access to this information after a certain date when there was a dispute about whether a lawsuit was going to be filed you know that the judge you know kind of take issue with the point d that out so maybe that the judge didn't make any ruling at all unreasonable diligence found plaintiffs contention that the request was on timely as unpersuasive and is supported by no authority are this is not that case and so yes could there be some extreme over here where the insurance company waits a year or two and then makes the request after the initial you come up with a factual scenario like that but it's not the case just like i could come up with factual situation where i could say you know we want to prevent this scenario where right out of the gate the plaintiff's attorneys make the claim it's attorneys make a demand for the policy limit it's not accepted and therefore we've reached the policy and therefore they never have to do anything with cooperation anything with any of the conditions of the policy that's the rule of law that they're at for advocating for in this case that if you don't accept our demand then then the insurance company has no rights under the policy more you've been the st to breach and that's not what the law is so i guess there's two different extremes here you know i think the facts don't support that we didn't act diligently at all in fact you know you have correctly pointed out that there was this real issue about the left shoulder and right and the factual issue was so important to the claims professional can kyle because the facts that were presented april nd two thousand and fifteen the records from her primary care doctor said that she had  resolved the problems with the right shoulder and there was no indication at all that there was a problem with the left shoulder that's what the records that this is what farmers had and then then in reading the records they find out that there was a june th two thousand and fifteen m r i the left shoulder but they don't have any records at all and now they've made the claim for the left shoulder they have no records at all as to when this problem started what's the issue and they're saying it's an overuse but the april nd two thousand and fifteen records didn't show that there was some kind of so this is what we're looking at this with farmers looking at during this time period and so when they get this demand for the left shoulder they're asking for the records and so what is pain cottle do until i twenty six to two thousand and seventeen he says he's produced already provided they well so that's a that's a whole nother issue regarding the medical records issue that medical release from twenty thousand one hundred and fifty three years before the situation's going on was part of what's called a medical payments claim and a medical payment plan is no fault d coverage you give us the bills we send you a check all right and so they did actually two as part of the medical payments claim that release couple years before this treatment was even provided that was the testimony in the case was that medical payments claim is a separate coverage that's not part of the claim filed for the you i am exposure d so there's think of it this way you know i've got a brown folder here and we call it the medical payments folder the claim and then we've got you i am playing poker over here now could he have access to you i am or the medical payments claim it put up no doubt but that release was not in the you i am aware this is essentially and that seems to be more of a problem of your internal operations amount legation insured at no point did the claimant's attorney ask us to use the authorisation that they previously provided to get the records the course of conduct in this claim was they were providing medical records at some point they omitted the medical records and we were asking for them they didn't say hey just use that authorization we gave you they never said that so the course of dealing here is very important  i'm not sure that they have some obligation to tell you which medical rob drives the nation to use because they've given you one right i mean and i'm not sure the plaintiff's lawyer as any idea whether you've got it stuck in a different file or in the  the real question i've got like in missouri do hospitals actually take two year old medical operators asians i mean that means it seems to me that well i mean i don't know one time since i practice law but they always seem like there was a bright line rule about twelve months we're disregarding the court believes there are some type of issues regarding authorization of medical records however i do think that they there's nothing in the policies that says that just because you submit the authorization you have no duty to provide any other documents they still have that for example examination under oath for example so the law is there it's completely clear that you can't say well we didn't cooperate preceded but now that it's in here's your authorization here's your deposition everything's fine we didn't do anything wrong it's the exact opposite that actually exactly right they could use that authorization they never used it judge erickson to your point there is no hard and fast rule about a year or two years in fact the one mr was sent to may want in the sack same stop says it's good for three years the c f r that sod it in our reply brief in the summary judgment motion says that the authorizations remain good for the life of the claim of the event and issue this was a bodily injury claim  it arguably then gave rise to various coverage parts one of which was the med pay claim another d which was the u i and client could have even been you him potentially liability who knows if the other lady said she got hurt the farmers underwriting material strike that claims handling materials some of which is a big secret it's in the it's in the sealed part of the record says what the authorization itself says which is it can be used by everybody which makes perfectly good sense and insurance company gets one set of records and everybody that's handling the claim no matter what the coverage parts can go to those records and can cause i'll reluctantly admitted that when i took his deposition this business about didn't give  dr means record they asked for and we gave him what we had ok so how in the world will we know what he wanted if he wanted something different and mind you i sent him a letter and said do you have everything you need and  notes highlighted red lines is this all and he wrote me back and said yes ok so how in the world i'm not supposed to know we actually need something else and they have not yet told you where we are at the end of all argument what it was they wanted ok the business about the in camera you know what that thing i was fully briefed in march of two thousand and seventeen and we didn't have a ruling on it we never got to see that file and that's because these guys said oh well so palpable threat of litigation yet their paper say well the reason we sent it out to and so that a judge sachs eating legacy that because they said when the claim got file while we were scared you were going to sue us and then his  reasoning in his deposition was oh i sent this out to my lawyers because of your demand i was a scared you were going to sue a so i said the same thing twice at either end and got away with it and there were no continued settlement negotiations after our time limited demand expired the district court's decision about that is wrong and mr was representation due to the contrary is wrong it is not in the record ringback which is permeated by