sanson and cold plumbing there are three reasons that i wanted to cover today as to why this court should reverse the grant of summ judgment by district court judge dawson below and they are the notice of cancellation as a matter of law was insufficient and that is the basis for the grant of summary judgment here second there are numerous issues of fact associated material issues of fact associated with the cancellation notice with the payment  it's replete with questions of fact and i'll go over those and then finally i want to address the procedural irregularities in this situation that require the court to reverse the district court first of all with regard to the cancellation as a matter of law being insufficient and i want to use my opponent's brief  because there's been some allegations that i shouldn't be allowed to argue the law that applies to whether this cancellation is legally sufficient  because it wasn't in my opposition because my opposition mainly dealt with the wave waiver and stoppel arguments but this issue is required for the court to decide the district court in order to judgment because the court has to decide that notice was given that it was legally sufficient in order to have a cancellation going from his brief page fifteen he quote effective until in the case of a paragraph a second one at least ten days and in the case of any other paragraph of subsection one at least thirty days paragraph eight of subsection one is  nonpayment of premium cancellation for nonpayment of premium and any other reason that you give for canceling a policy you have to give thirty days notice they admit to only giving ten days notice also in the policy which is that page sixteen the same situation is there ten days if it's for cancellation because of nonpayment of premium for thirty days if it's for any other reason then we get to their cancellation notice and it says they've only given ten days number one and the reason given for cancelling the policy is nonpayment of premium and or nonces middle of a monthly reports are the same thing and no they are not the same thing how was the premium calcul calculation that's right that's what they had to receive the monthly reports is the answer to my question they could not but they could they could calculate it themselves they don't need the monthly report to receipts right and it required some calculations correct and that's what's referred to it's part and parcel of the premium is that i don't think so because  the reason in the statute for ten days on nonpayment of premium and thirty days for other problems with the relationship but let's suppose in the hypothetical circumstance that a portion of a premium was dependent upon the number of employees that the insured had at a given point in a given month ok this hypothetical question and if it's ten or less the premium is  if it's ten or more the premium is the only how that would not be part of premium payment if if the insured in a given month he were refused or declined or neglected to provide the number of employees the ok as in this case the premiums paid far exceed the premiums due even up to the payment made after the accident no this is including the initial payment made in june like june fifteenth then the insurance company be old them for on the twenty fourth that was the very first monthly report that came out which was inaccurate prepared by the insurance company to charge them for three thousand some odd dollars that they already paid and if they had just paid that report you know paid the numbers that were on that report without conversing with the insurance company figuring out what was really owed and what wasn't code they would have double paid that some four thousand dollars premiums to take that policy clear through the end of may actually in my report if you look at it aren't you answering two different questions one is your the what you're saying is there was already enough money in there to pay the premium i think i understand your position ok you are conceding you didn't pay the premium when do and you say it doesn't matter in this factual question because we had overpaid prior premiums is that what your position is that's correct and not only that but it factual question because we concede that there was never a payment that said january paid you know that we can point to in the evidence but our understanding was and it speak was out of the way this month  reporting was done by insurance by the insurance company starting with the very first monthly report that was three thousand dollars off in their favor but because of that  my client in his deposition transcript attached to this by my opponent this is their supplemental thing number sixty five at page one twenty two yes asking about the january payment and he asked the question let me ask you this do you believe that as of april twelfth two thousand the date of the check in are that you were you had paid january two thousand premium answer i felt like i was totally that's their argument your argument is we overpaid there is a positive whatever we got plenty of money and you shouldn't cancel us i don't know if that has anything to do with and with the notification on that you're saying the notification is invalid as a matter of law but you're defending it by saying we had actually paid to the first part well yeah then you go to a ten day notice right well except then you go to know that a law which says if an insurance contract is ambiguous then the ambiguities construed didn't pay my printer and i didn't give the monthly reports that's what they're saying i did wrong that and that's exactly what he did in a reasonable point of view so what's and what happens is that gets construed against the insurance company so  because it's i didn't do my monthly report on time then they don't get to give only attending a notice because it takes longer than ten days to straighten that out right but i don't see how the excuse is i don't see how you c why is the addition of the why is the addition of the other factors why does not actually because it makes an ambiguous and then the insurer doesn't know what they're supposed to do to keep their policy in effect and in this case the insurer did what he thought he was supposed to do  it wasn't enough but you know that was because the insurance company doesn't want to be enough but then we get to all the and i see my time is running fast let me quickly go through the issues of fa t was a premium do we already went through that issue but there's a lot of you know in our thinking you can start our chart you can see eleven thousand dollars worth of premiums were collected by insurance company and only ten thousand six hundred are owed in the at the end of the day there should have been a refund to my clients of premiums in this case and that was never done that's a question of fact they couldn't do a cancellation for nonpayment of premium yes the premiums are all paid and the january report was yet sent to them and and be insured testified that he thought it was all paid in advance and so that raises at least an issue of fact as to whether there was  a amount of premiums still owing when the when the notice was sent was a report not sent back that is a question of fact if you're taking the either or approach here and that that can be a reason for them to for this cancellation those to be valid there isn't a report that wasn't sent back there was no report sent for january  and finally there's a reasonable confusion on the premiums as a result of this course of dealing you know i started with the very first report june that had an improperly billed three thousand dollar amount and threw out the reports if you look at the different reports were filed it's a continuing course of conduct between these people to cross out and interleaving eight and that has always been accepted all the way through and then now it's not accepted and that's the waiver in the stoppel issue and just very quickly the federal rules are important and it's not appropriate to have strict compliance for one party and loose compliance for a rich or more powerful party because the federal rules in this may seem like a little picky thing but if the federal rules are not enforced across the board evenly you end up with a separate set of rules for one group and it's important actually to that group the rich and powerful to have the rules in force because that's what keeps them in power thank premium i've been paid four days later and now premium was paid much later than four days late now but late is that if i'm just saying it would have been paid for years and i thought i accept the responsibility i filed the motion four days late the court made the decision to hear the motion for summary judgment i certainly was not going to on behalf of my client tell the court not to hear the motion for summary judgment or rule on it at the time of the joint pretrial conference or excuse me the pretrial hearing attended by mr christians and myself judge dawson and indicated that he wanted to hear the motion for summary judgment we returned to court approximately five days after that hearing and had oral argument the issue i think needs to also though  looked at with respect to whether or not there was any prejudice to any of the parties the circumstances surrounding the filing the late filing of the motion for summary judgment all which i believe favor the court's hearing and ruling on the motion for summary judgment first of all we have some depositions that were taken in june of zero three those depositions primarily of representatives from an independent contractor h d r previously named defendant but stipulated or dismissed by stipulation with prejudice was done really at the request a plaintiff counsel not mr christianson somebody formally in his office who had not noticed these and we agreed to do them in june by stipulation we didn't get deposition transcripts back until july same thing with one of their primary witnesses kelly cain who they controlled we didn't know where she was they finally located her in arizona and agreed to bring her to las vegas late in june we took her deposition so there were some factors there the motion was only filed four days late the hearing wasn't for four months after the motion was filed certainly there was ample opportunity for both parties to fully brief the issues to fully discern what evidence needed to be presented before the court has turned the merits yes your office it correct th flying it's incorrect for a couple of reasons first of all i want to begin with the charge mr christensen refers to that in his brief he talks about an amount of money that was overpaid i believe though that he miscalculates because the last check that he refers to which is a check of approximately twenty nine hundred dollars that was the check that with sent on may twelfth two thousand may twelfth two thousand which is two days after the motor vehicle accident in question that check was returned the second point so what you're saying is that you reached the number that he contends amounted to an overpayment you have to include the close tax payment i believe so the second point that i want to make  policies allow for an accounting process to take place at the conclusion of the policy period then go back and do an accounting and make certain that there weren't more vehicles on the policy than had originally been told to the ensure d that could happen in this particular case there has not been any evidence delineated showing that there was any overpayment least two or three times before the final notice of cancellation was sent out and it's very clear that the january premium was not paid because when the february premium check was sent  it the check specifically delineates it is for february two thousand only and in fact somebody with a collabo crossed out the january payment we don't know why we asked them why in their deposition they couldn't tell us why they crossed that out but they did fail to pay the january premium and in fact that's admitted to and in fact it's it's not only admitted in the record but when you threw me through discovery but when you look at the final check that was sent in may two thousand which is two days following the motor vehicle accident for which they're seeking coverage they specifically delineate on the check that they are pain january march and april premiums so they have full knowledge it's fairly clear that they did not pay the january premium prior to the cancellation date of april fifteenth two thousand i don't know if your honest wish me to address any further issues some way from the stop of there are issues that were raised in a parent's brief for example they argue that we waive our rights or are stopped from disclaiming coverage in this case because we allegedly adjusted the claim of another motor vehicle accident that occurred on or about april fifteenth two thousand and i don't know if you need questions answered on that seven b when you send a reservation of writes a letter on a climb we did not your arm and in fact the testimony that came out from the adjuster that handled that claim was that she attempted to contact the insurer primarily because we weren't certain that an accident or a claim had occurred on april fifteenth there was no accident report there was no statement from any witnesses the only notice that came forth regarding that was what we call in a court form which the agent had submitted and it listed an accident date of april fifteenth for example had the adjuster contacted or been able to talk to somebody at colaba and they were told no the accident was on april fourteenth that would have been a covered claim because the cancellation was affected april fifteenth but in this particular case we weren't able to make contact with them it was finally determined that the accident must have happened on april fifteenth and the claim was denied if there are no other questions the only thing that i would add is that and i do take exception to some of the comments made in appellants brief that we relied on evidence that had not been authenticated or was not just briefly a little bit with the procedural aspect of this situation it was a calendar call after a settlement conference monday morning for a trial to start the next monday a week later and then the issue of i'm going to decide their motion for summary judgment came up and we cover your prejudice because i came down for a calendar call and was told are you ready to argue this motion and i said no i'm kind of shocked that you're going to now consider it and the court gave us two days it wasn't five days later it was two days later while i'm in the process of preparing a case outstanding judgments to my knowledge well that's good news but news to me well the reason i ask is because you know really this none of you would be here except for the fact that there was a major parties including the ones who aren't here before the court so happy to participate in something like that one other thing on page thirty two of my brief because it's totally inaccurate what counsel for the insurance company has said about the calculation of premiums paid the totals at the bottom of the page money due and that goes through april of two thousand and ten thousand six hundred thirty nine money received is fourteen thousand five fifty seven that includes that two thousand nine hundred dollars check paid in may on may twelfth but the money retained as of that time is eleven thousand five eighty seven seventy accrued through april and that's money retain that's money they actually had in their possession and by the policy if that was extra money more than what they if they claim they cancelled this policy  it was not part of the record so i didn't include the following motions for summary judgment attorneys rob murdock in montana are those were the two attorneys representing the various plaintiffs in that case contacted me we made a disputed  settlement just geared offered to them and those claims have been settled and satisfactions of judgment have been filed in that underlying tort case that's not even that's not even if you're a sectional now for us you know you know it was not part of this case so i didn't address that issue you are never came up that there are a lot of damages that flowed from the inaction and the slow action on the part of the insurance company for your complaints for them sure just no it's not your bankruptcy is not raised in the complaint is the damage well i