good morning i'm reserving five minutes rebuttal i was hoping judge cole might be on the panel from columbus i don't know if either of you are aware of muirfield in columbus this cases involving this area near field is where the memorial tournament this played each year is part of the nation program of professional golfers tiger woods has been there in this one a number of times and this is a very special place that has been created by jack nicklaus the statue of jack nic area that there are restrictions and there is a design committee to make sure exactly what judge guy has just said that the roofs will be made in such a way that w bloom goes by and you look at it on television just the roofs you can see from the gulf the crack it's not all the roofs in the community it's just the ritz that you can it's all the births in your field there's the the the muirfield village the design standards apply to a very artless of whether you can see him from the golf course but we don't see him from the golf course you see him from the blue and the blimp sees a very large area but the point of it is that the way that that get it  whatever it is but root material abutting the muirfield village golf club property and certain other places that are visible from the golf club property and this property that your answers the judge given suggests that the answer that you gave is not correct no i think you the how do you respond to her reading of the actual language it wouldn't be in this that include all the groups in this development that language it would matter because they're just across the street from the golf course so it doesn't answer my question there are some that are just across the street from a golf course i assume yes i'm sure that's true but the insurance company is going to know about this limitation if it only applies to some of the houses posed all that's only reason i ask if i understand your question and their knowledge of this area is superior to my client knowledge who had no knowledge that there was even such a restriction as to add i know i'm a little a little baffled bad that contingent it's hard to see how an insurance company that's a large national insurance company even if they dealt with someone locally is supposed to know more than the homeowner about the restrictions on the homeowners property but let me address that i appreciate your asking that question a twofold one we're not speculating they did know the testimony is from mr c bauer the claims manager that he had actual farm should have known at the time they purchased the policy and helped sold the rights about that at the tab they purchased the policy yes and mr seabury knew about it for years before hand person who sold the insurance i'm sorry what's his relationship to the person who sold the insurance i'm asking sort of a yes or insurance or kind of question here is it that person supervisor or somebody in a different office of a huge company or what the insurance agent is the agent of the company the company in its information the database is over in a separate building that says agency of this company or i'm just trying to get at how close they are on the on the wiring diagram i don't think that you would find them close in the wiring diagram that we're talking about a large cutting i mean doesn't the n f l against your  argument not at all not at all because state farm is a huge company if you would use darnley expect as a sort of common law requirement for for for the basis for some of your claims that you have to know all the bits of information that anyone in a huge company knows when you sell someone a policy as opposed to just what's in the terms of the policy as a matter of fact this is for a jury to decide when if we would use the logic that you are expressing your honor when you have a large large multi billion dollar corporation with lots of lines and lots of connections your it perhaps would suggest that the corporation has no knowledge because the knowledge is not possessed by the particular person at a particular time but the knowledge of a large corporation can be found by their database at a minimum it's undisputed your clients had no knowledge that they were subject to this restriction correct that's correct they didn't buy the house you know they when they went to  far there's no indication that they said it to state farm here we are in this development with this description right but there's no restriction no they told them what did they say that they're buying a house in their field and they need and stay for a new new field had these restrictions they didn't know now whether it applies to all the houses in your i mean i'm just fig trying to figure out how state far is supposed to figure out that even if it has this particular restriction somewhere in its computer batteries how is it supposed to figure out th this particular house is covered by the restriction if it's not in your clients don't even know that the restriction applies to they how and how is the insurance company supposed to know i think that's what we flush out at trial i don't think that that's a summary judgment or reason i asked the question along those lines is it seems remarkable that there would be a legal duty to find that out not whether they actually found it out but whether there's a legal duty to find  first saying that what's your strongest case for saying that an insurance company knowing that you would probably want to dish and the insurance doesn't tell you that you need additional insurance i mean that's what the self doubt right i mean there is the bottom line is you're saying they should have said the you need to get something in this in this contract that covers this or you could be you could be at risk of having to pay a lot of money then i think that's the crux of your argument that's one of them that's not all of them well one of the one that it is to be problematic unless you have cases which say an insurance company owes you the obligation to advise you about in additional insurance you need now usually they do that i think they like to knowledge a duty to disclose arises when there is a fiduciary or confidential relationship or once parties superior knowledge of essential facts renders nondisclosure inherently unfair of any cases where that doctrine applies to an insurance company not advising about additional needed insurance as to an insurance case i don't know i can't say that for sure i see your time is almost up online to ask you one additional but and that has to do with your argument about the design standard under the provision of the policy which insures in case the repair has to be up to the standard of an ordinance or a law right that's that's one of the provisions yes is that is it your contention that the design standard is one of those items an ordinance or a law two points on that is the administrative woad has been found it's a yes or no question is it your contention that the design standard is one of those words that are in the contract law or ordinance or whatever it is now it has been amended it you're correct it has been omitted and that is the mistake and that's where the but you're not making an argument that that science standard is a law for the purposes of that contract provision i'm saying that there are three causes of why insurance must cover increased costs laws ordinances and the  requirements of the the order of the day to stage it is put that in the contract but you're not saying that it's already in the contract no i'm not i'm saying but the law ordinance is included because of the administrative code which is a law the not necessarily part of the contract the law an ordinance exception is and he bought the lawn or the laws and ordinances extra policy there's an educator's modifying that but i think we will let you talk about that in your rebuttal time thank you very much mr gans is that correct the  you're a good neighbor and then you don't act like a good neighbor and say well i believe being a good neighbor is living up to your end of the contract and i believe s what state farm did yes i was being flip but he does make an argument that you have some sort of fiduciary responsibility arising from appellate court case in ohio called bachman and in buff meant what happened was there was a change in the uninsured motorist law in ohio it kept changing over a period of about ten years originally state farm through many of its agents were advising the insureds of the changes in the uninsured motorist law then there was a change in the law again they didn't advise them of that depositions in that case proof that  motion for summary judgment the court based it on the fact that state farm had it to do sheri duty to advise them because of past practice of advising them of the fact that the changes in the law and this last change in the law some people could have not insured all of their vehicles front insured motors coverage and still had coverage that was just of it the gist of it it was and an insured it was a motion for summary judgment type case the court did mention advertising but that's not the basis for the reason create a fiduciary relationship even a good neighbor doesn't have a fiduciary obligation it doesn't it doesn't in this situation the rights didn't know their agent never have never met their agent to this day mike macclassic mr wright met the agent employee for the first time on the day that he went to get coverage didn't ask any questions about you know hey a claim team manager who is in the claims department in other words when you have a claim what it got us or what it is that there's a claim representative level and then they report to a claim team manager has a claim team manager something like that out it's my question because he previously denied replacing a roof denied placing yes yes i understand there's no fiduciary relationship but it seems like a big seems like that would be something you might want to alert people to well well in i believe in ohio when you when you start talking about an agent principal relationship it has to be the agent has to be acting within his scope of employment and work here we have a claims person there is no evidence in the record at all that the agents were aware of this rule in that or that the underwriting people were aware of this rule it's as you said a large company and we're not talking about a soliciting is not talking about an obligation but when she agreed it's kind of seems like a nice to do kind of thing i mean to be good for you be good for them well your honor i guess it's the type of thing that you would expect when you're moving into a place to know your homeowners association rules there has to be hundreds if not if not thousands of homeowners associations just in the state of ohio to to put the onus on an insurer to learn all of the rules of every homeowner association and then trying to keep up with maybe they amend their rules maybe they change them and then try to try to provide that information to us and to its insurance seems like an extra contractual requirement that the ohio law doesn't doesn't burden insurers with we had a different case had the rights gone in to the agent and we're living in this development here are the restrictions i need to make sure that the homeowners insurance appropriately  risks that is thought to be insured would you i would i would agree your honor that it would be a completely different story if you where where's that principle sort of captured in  in all of the cases that were cited i believe on both sides of the brief regarding fiduciary duty if under ohio law there is no it is not considered that there is a fiduciary duty between an insurer in insured unless the both sides understand that the agent is giving the insured additional knowledge usually at the request of the insured and that the agent is representing to the insure that this is what you should do if the let's say the homeowner doesn't any information but the agent starts giving advice and asking questions beyond what the homeowner communicates there is some potentiality for creating a relationship that wouldn ordinarily igs the possibly but not in this scenario and here is why there is no coverage that state farm could have given there is no option that state farm could have given to the rights to cover for this scenario because it's not a policy that would be the policy they claim they had is not a policy that would have been written the correct correct the accidental for direct physical loss only goes to the area of it's damaged and you have any insurance policy you want to know well because the state farm has to provide its insurance policy to the how department of insurance now to say that so the agent can't just say well let's go ahead and write this it you know there's there's all  claims here breach of contract misrepresentation and bad faith i think we already talked about the misrepresentation but the fact of the matter is that the rights didn't even know that they had this requirement until after their first loss  demonstrates that they certainly weren't relying on anything the state farm told them because they didn't have that information with regard to a breach of contract the policy states the state farm case for  accidental direct physical loss it's not in controversy here that only part of the roof was damaged from the wind and state farm was willing to pay that amount it wasn't willing to pay the amount you aware of their covenants and said we have to have a policy provision that says if any part of my roof is damaged roof will be replaced are you saying they could or could not have gotten that kind of coverage your honor judge guy they could not have the agent would have said no we cannot provide that type of coverage thank you set the record is that are you by you below is a pretty strong argument but i didn't see it in the briefs i don't believe it was other than the fact that we stated that the policy says that we insure against accidental direct physical loss it would i you had you know a harsher situation are you believe where somebody comes in and says i want this homeowner's insurance and there's a clause in there that says it just doesn't apply if any of your rooms have been rented out for instance and the person comes in and says i want this homeowner's insurance big smile on his face and says and by the way i plan to rent out in a few weeks in a few months i plan to rent this out there's no obligation for them to say you know this is going to wipe out a lot of the protection maybe you should but there's something about that or is the law pretty clear that that's just kevvy out empty or you don't have to warn them just so on the policy even though it's pretty clearly not the policy with the information given that you would have no i know that you can distinguish that from your case but i'm asking about that case just to see what the law is well honestly your honor i believe the law is clear that it is long as he didn't ask w i be covered if i had those then the only obligation to read the contract the only got yes and the only obligation the in the agent has is to provide the coverage that's requested now if the agent had said something like don't worry about it they're never going to find out then there's going to be coverage in state farm's going to be responsible for its agents actions but in this situation i was just talking about whether in that type of situation there's any kind of law that implies an obligation to say this is this is clearly not the contract that you need to be buying but you're saying there's not it's just up to them to find out what kind of treatment it is i believe that is the state of ohio law that skew and about this administrative regulation i mean there are questions about you know whether it falls within the language of the contract but that's not really what i'm asking about what the the application to this well you're wrong are you referencing the issue about possibly matching the matching of the shakes rye all right well first of all in the code itself the first sentence of the code says nothing in this code shall give rise to a private cause of action now having said that that doesn't mean that everything in the administrative code isn't just part of the common law well they're not really every shake would shake roof in ohio would have to be replaced and not repaired goes to the same situation here i would think that the court could take  notice that cedar wood turns gray when sun and water are on it for a while that's the way of which a proof exists now the reason why the  replacement is needed here is not because of matching because eventually it will match it's because of the near field golf associations request or demand or covenant that all roofs be replaced and not repaired so the fact of the matter is that the ohio administrative code in the whole matching issue isn't isn't really even part of it here because there's there's no evidence that the matching that the that the would shake won't won't eventually come together in that affidavit in the record that it would it indicates that it wouldn't in that case initially and that's correct your honor i mean th again it's not in the records so i won't i won't go onto it but but clearly there are ways to to to match it but it will match and again that came up in the that came up in the memorandum contra on the motion for summary judgment for the first time there wasn't any claim for it before that this was not a matching case does that does that does that prove require the contracts something that they currently are no because if for instance let's let's think about citing vinyl siding state farm has a duty to match muffin times when sighting is damaged the original site is not made anymore so you have to get something that looks and you have to the standard is it has to be a reasonable replacement and in that would shake roof industry a reasonable replacement is a repair would the ohio insurance regulators examine the contract see your contract that they were proving presumably to night to determine whether there how they are to replace would similar construction and for the same use on page eleven of the policy we will pay to the cost to repair or replace with similar construction and for the same use and that's what they did thank you i am struck by the fact that my client bought the policies before he bought the house the state farm  saying he didn't read the terms of the policy when state farm didn't give them a copy of the policy the evidence is that my client buy insurance all the time without having a comp contract how is it the contract that they're going to get until they get it and read it how is the court can say my client didn't read the policy when they have an obligation to give him a copy of the policy so he could read it there is case law to hold that where you ever gave him a copy are compensated do they concede that they said they sent a policy my client says he never received a copy of the policy he uses the fact that he had asked for another copy not for another he never got the first one maybe his conclusion that he didn't get the first one is based on his having to ask for the second one right he didn't get a copy of the first one that's an issue of fact before the court that's for the jury to decide the requirements of the covenants at that time at the time they bought the policy judged by your correct because they did not yet know what what is going to be now so far as the administrators code i think you can expect  state found to be changing their policy as a result of the cullen case that we talked about and the supreme court case of ohio in which the supreme court has ruled that that administrative code is to be considered part of the code the ohio supreme court now has said it is part and it must be considered and so the jury would be allowed and the trial judge erred in saying that the administrative code was not applicable his exact argument was made the exact argument was made by state farm to the higher supreme court the supreme court rejected that well that court didn't say you know that the administrative code provided a private  cause of action that they are oh no the supreme court said that the code section the what they had to do in the twenty three class action case is to consider the evidence as to whether or not that section was violated they didn't question whether or not it's a duty they quit the supreme court said it was the it was the obligation of the trial court to see whether that duty was violated they accepted the administrative code as creating that duty now as to the law about creating a fiduciary relationship by ed burgess meant the boffins case says state farm state farm specifically the defendant in this case has purposely sought to set itself apart as the most trustworthy insurance company the one that treats its cut the customers as neighbors esther after years of profiting from neighbor does that make you a fiduciary it means that the jury can consider that because the language and it's important to understand the language of state farm a legal issue whether you're for the sherry or not it's up to the jury to determine whether you the jury may consider that is whether or not there's a fiduciary relationship and this bombing case says that he could go to trial on that question so that's ohio law and so that's why we to the contrary if there's nothing further i believe your time's up thank you but i did want to say one thing if i could i'll never get a chance to say it again my client  all right we appreciate the argument but you did given it will consider the case carefully