good afternoon a place of court my name is david surgery i'm from san marcos texas i had the pleasure of representing miss lilly and smith is a real estate agent who sells ranches islands all sorts of things from a little of west off texas where she had a building that building was struck by lightning and an insurance claim came about the major issues in this understand that there needs to be some room in the joints as many people have written in other cases however in this particular case your honor without going over the facts which i think been extensively briefed there was miss smith presented evidence from her engineer after finally getting a copy of the report so that she could try to explain the problem and if it had ended there we wouldn't be here however there is extensive e mail correspondence going back and forth which ends with three different engineers giving up boards and an e mail that essentially indicates that interest company was reconsidering she counsel says in her email to me a more formal letter based on what you've given is based on your evaluation from our own inspection here's our answer we're open to other information if you have it in time they basically state that that what all to label that but that's a real conundrum for the insurance company will you usually feel too sorry for but nonetheless in a contract in a contract or relationship with your car what should they said we've now we everything you've given issue none of it sufficient don't sindhis anything else no you are but what they do is once they get our court it's worth plus it's their actions a cruel date of a cause of action involving insurance coverage based on the violation of the texas insurance code bad faith breach of an individual's contract of violation the need to be a may because that questions a fact and that's what you just argued for there are questions of fact telson cannot get up on this a standard there is no evidence that they did there is no insurance adjuster saying yes i did this for customer relations but said we're open for anything else that you have are you saying that there's a fact question there isn't that a legal cannot be analyzed as a legal question that if that's what insurance company says it is the mere expression of being open to further information keep the statue of limitation period from beginning and i think that is a legal question i would argue whether and when the texas supreme court does answer that question is i don't think that's the same question sure fact questions could and could enter into this but here there's no fact question you've got in a written statement is that written statement create in a fact issue and you are what you have are the actions of the interest company after that  need is a case your position is that of cruel began with the denial you don't dispute that was it did not i thought that subsequent conduct rescinded the denial yes your honor so the net two questions one is when did th denial occur in your mind in my mind it occurred at the earliest after we got the last letter which was i believe in april of two thousand that says you're going to get a f clinical question then is if you're saying there is an material issue of fact there wouldn't be a material issue fact if under texas law in order to rescind a denial the insurance companies got to say i rescind rather than we maintain our position or the insurance companies company can start paying because that would be inconsistent with a down but clearly they never say we have changed our position and they never paid and i don't see a texas case that deposition ever taken where they said exactly what you're saying and when you look at the problem life case that the touched on this clearly the first letter but then you look at the other actions and that's when you look at whether or not there you distinguish the pace case that they rely on because your honor i believe that the pace case first of all believe it's  communications to be yes your honor and i believe that's where a reasonable person is not a legal question that becomes the fact question and i believe again the fact question is what the problem of this entire the interest on his position is because is that the insurance company itself has actually summarized this case in their syrup law is that the question is do the quote actions paying her how would she think that they've changed their position you know because i had engineers look at it they consider our engineers report i think had done that and i thought in the end the letter that comes at the end in april says yup this the third engineer agreed with our first we are changing our position we never have and we are but we wanted to possibly avoid litigation come to a settlement so we willing to look again but we have never paid you a penny we have consistently said since november the time and so that's where the fact question comes in and that's where under either standard or the court you can't substitute the court can substitute its own judgment quite true however the point of it is your honor when they hired the second the third engineer you would assume there's a purpose for and again there's no evidence in the record of what the purpose for to avoid a bad taste claim down the road we simply there is something no evidence in the record for the court to have made that factual determination i don't i don't see a texas texas case says we're a greedy take a second look for since the denial force pauses limitations yes and they certainly had the right to reconsider if they chose to do so they did reconsider and i alternately denied i don't see any texas it out there are two unifying principles that apply the discovery rule case and this is here where did we discover we've got a problem there must be in the nature of the injury must be inherently undiscovered so if you or i feel that me you understand the the claim and seeing if they were right or wrong and i think that causes it i think that falls squarely into your own logic in the a g c i case because at the end of the day you don't assume that the interest company is doing something for an unreasonable purpose and in this case they waited two years so i think the insurance company's own behavior gives you a circumstantial case that says we didn't see this as a limitations problem because we in fact were looking at other expert opinions and then we decided no we never formally said that but we did say there's a form this or not and there was a there all come back into the usual insurance company to cover this particular claim and maybe the dragging out of their dinar whatever to make of that when there's no separate set of factual questions related to the plane while i should look at your complaint but i want to know if there's anything further there there's nothing that's set forth in the complaint other than these operatives are and that's what happened to one or the other correct and that is what happened in pain the case in which the appellate was relying there was a change in the coverage position upon the request to revisit there was a subsequent payment based on that that the reevaluation and that's the big get a request to reevaluate what the pace shephard the zhong all teach us a simple request to re evaluate in the insurer's agreement to do same does not restart the clock we have an outright denial on the video twenty thirteen insurer specifically to go ahead and do that and it's incumbent upon the appellant to come forward and say show me the change position show me that payment not just you know there might be your shepherd specifically says we need to get the decision  letter says nothing in this information that you submitted to us changes causes travelers to change its position nevertheless we exercising a paraphrasing we're going to exercise our right to re evaluate just to be sure we're going to bring out an engineer and we'll implicates the predicament of a person dealing with an insurance company right there for a reasonable person would think ok i've asked them to reconsider and they said ok i'll hire a new engineer look at the cause again and then the next thing they get is you'll get a formal response i'm not the read sure the reasonable person would think i've got a suit them because if i wait too long in spite of all these encouraging signs they're giving me they're going to turn around and say now you're too late and instead of the let's l at the facts of this case it wasn't just a more formal response it's the engineering a court confirming the prior conclusions that there is no covered cause of loss and counsel just said that's when they knew the earliest that i thought the e mail in april that said you'll get a form response also attach the third engineers report it and that's and that's the engine that's what our engineers report ok confirming the same position that we have had all along just quickly factually it's not often we get surprised but it was allowed and you submitted it in in your footnote in footnote thirty eight you say the third engineers conclusions were similar to the first engineers are either of those reports in the record believe the first engineers that you're getting the first one even is because i looked pretty hard and i found her engineers report which is pretty explicit about how the lightning worked and cracked the foundation and all that so i was eager to see why the insurance company's position wouldn't and unless either the insurance company says we are rescinding or denial or they pay regardless of what they say there can the the pool is not interrupted so that would allow it would allow a lot of communication skills that could local somebody and it strikes me as odd that that you can have a lot of the communications to an insured saying ok we're to look at it we're eager to get yours were eager to compare but then at a magic moment they can say we didn't get that form response to you but now it's too late on this but texas laws it's published as well there they say that there were nine months between the april letter and the november thirteenth the six months between april and there's a lack of committed there's nothing going on at this point there the record shows no has been raised by the contractual limitations with the statutory limitations was certainly included in the second to the answer to the extent we disagree and i think more than sufficient time was on file for four months left to still do the discovery extensions to respond to our  so much more including spending money on an expert to review what the first expert but that takes it out because a reasonable person would assume that they are reconsidering if they're hiring another expert if another expert has to go out to the building to interrupt their business for a day to take measurements to see where the lightning struck to see that don't know if you've given it to if you take a look at been state law applies but once but that has to do with the that full determinations of whether or not this is a question of fact i think we've shown that but i think if you're looking a while you're on it which also has employable tolling provisions which once again look at the actions of the state and i just are you that by analogy as opposed to arguing it you know on these fa breaks it was not your own but i'm bringing it to the court's attention because really when you look at problem of life of saying there's something if there's something else out there it's a fact question and it's on a case by case basis