allegations mirror the ultimate evidence there is more detail because now we have for instance a roofer confirming what i think a jury would infer that yes we will abide with our with our deals  and we have evidence like that we also have additional evidence for instance that the reason that the adjuster was making these representations about you'll be indemnified for this is that he had told them all the funds would be provided it was because the juster actually thought that the adjust or they should know the facts that they're going to hold the the insurer do and if they make representations that mislead them they have a duty to fix that so if we get past the initial frame the initial problem in november and december when they have when the evidence indicates they know full coverage was going to be applied and they could have simply accepted that and said here we'll love we'll cover this go do your work will pay and when it's done they would have the benefit of the bargain but if not then you get into the misrepresentations they're alleged in the paragraphs i mentioned but you also have the evidence all back in the it comes from the testimony confirming you actually have evidence in there of the emails that said lexington lexington the insurer raised in response was not any of these things i think at this point they're basically conceding that by november december they knew this claim was fully playable they understand stood this claims fully paid they're trying to say they didn't have any requirement do anything for two reasons were st of all the the payments after repairs was i don't remember how it's phrased now but the idea that the contract says well actually pay these until you do the work again this is not a mystery they do it but there's no such can contingency requirement for the acceptance or the denial the insurer has to make his call as soon as he has the information to do it i mean i find tarp or did everything the insurance company never said we're not going to pay two one hundred and fifty thousand and that i think is a frankly i agree with you if i was the fact finder that's how i would decide it but i'm not and it was little it's a little of i think more open ended without both on the allegations and the evidence the reason i think some of these other sections were added about for instance five hundred and forty one point zero six zero eight three is giving a reason for denial that would only apply of play this won't put out if it could be in contempt of that way then a three would apply if not i think you're right i think it's really a situation where it's a straightforward violation of the prompt pay act that they did not accept or the not in so if that's the case without regard to any of the other stuff we discussed there's a it's got to go back to the truck court for a proper play by lation because they didn't comply with the forty five days after everything they asked for fifteen days after everything they asked for so at the very least the church should be entitled to interest on it two hundred and fifty thousand that receipt from you know i'm sorry i got off track on that but with regard to this the problem is not payment the problem is not accepting or denying the claim for full characterizing the church's claims as claims for policy benefits but as you and i agree this isn't a claim for policy been this this is a claim for the additional cost created by the adjusting process though and as we said in the briefs they look at two different ways it's it's recoverable under mn chaka by virtue of either of the benefits loss rule or the independent injury rule which way it would fall probably depends on the way the jury comes down on the factual issues it's in and i think there's evidence where a jury could find it's intentional and that it was knowing it that they that they knowingly violated this and get in trouble damages but at the very least we've got we've got recklessness but to my recollection if i remember i think for the the particular statute that i'm thinking of i think the standard there's the phrase from one of the cases that there's no claim for negligence claim a dusting of flour if i remember in the context of five  the failure of actually cause damages separate from the policy limits for the reasons we discussed before i think the answer is yes and if so then the damages are the extra six hundred thousand dollars the shift from thirty five thousand  within the scope of whatever it was he was doing on investigating the claim coordinating with etc whatever the adjuster was doing lexington has a duty on everything the insure unquestionably everybody duty to sign the contract with the roofer on behalf of the church looks into his duty was to pay two hundred and fifty thousand dollars when it realized the claim was covered when did it paid to him fifty dollars i'm not sure but i know say six months after sixty seven months eight months eight months after i think it knew the claim was covered in fact i mean were there other damages seven charges because lexington's brief says that they paid out a but as i understand it is that this is a help when whatever is weather related claim need to replace the group when they start figuring out what's needed to fix the roof they find up ok the underlying roof stuff i think is probably the technical term whatever root problems are is all it needs to be brought up to code so in addition to fixing the stuff that that got broke we also have to underline things to fix this so the issues of all the things that i've discussed at this point all the extra contractual stuff everything involving extra contractual relates to the code upgrade then there is a distinct and separate little earth where if you reach a contract which involves the tile that's on the decoded two pages it's basically a straightforward who gets to decide this issue between two experts both experts agree factual background if i remember rightly  of lexington so give us another bid for a different kind of title in the end up paying for a lower quality tile that's all new so then the issue in that is that they get a roof that was of like kind and follow no question that it wasn't like timing quality both experts agree on that but lexington's experts doesn't matter though because this new low quality roof is better qualitatively if that's the issue the word is better is partially old partially new high quality is better or worse or better or worse than a new lower quality is plainly a qualitative issue for the jury to decide it is the fact issue and the jury is not bound by either  because lexica refused to take the bid and said we would rather proceed on a time and material basis that that was an intentional project on whatever act requires us to agree on the scope charge with through that process which is not the client i had the contract with said two hundred and fifty thousand and four the code upgrade mean so you're on notice i mean they're on notice and fadi been even the police court money and brawling ford and i represent lexington insurance company in this matter brought by the university baptist church some of the issues that relate to this claim more started with the original case you guys heard today which is this is unfortunate a court not we get a psych court not we guys ok i'm sorry i apologize but money my mistake your honor the issue related search it is unfortunate for the church here one of the issues that just stones brought up was the fact that what you see a rise out of the unfortunate gross under estimate body u b c's chosen roofer of what it's going to cost to do ready the code upgrades here u b c is attempting to take advantage of the gross under estimate by their chosen roofer and try and get their insurance company to pay for those timbs lexington didn't create the code upgrade issue that was something that was identified by u p c two for it was then an engineer hired by u b c who came up with the fix in order to allow the new roof to be put on entire two hundred and fifty thousand dollars supplement as the court has recognized that's clear in the policy they don't have to be told what it is they are on notice of their limits in their policy and regardless of whether they church was ever told what those limits were they are still held to those basis so what happens for code upgrade coverage the church actually has to spend the money they then have to show the insurance company here we've now spent the money please reimburse  there is nothing in the record that says that that two hundred and fifty thousand dollars was not paid timely once they were provided with the information from the time about the policy requires that yes your honor that's clear language in the policy of when code upgrades have to be paid so in answer to your question your honor it was paid timely and there in fact is other than what i heard from mr taylor they there are no allegations or evidence that it was not in fact paid once the information was provided to lexington of what amounts to that that amount had actually been paid for code upgrades to answer question itself or other portions of the roof and the actual cost to put on the roof that would not be considered a code upgrade but the two hundred and fifty thousand dollars itself is all code operated that was  i'm going to take this in a verse order from the way that mr taylor did because usually you start with a breach of contract claim and then you go into the insurance co claims couple issues that i think mr taylor is mistaken on is testified to was that the light kind in quality repair here would have been to repair the damaged tile not replace the whole r under the policy lexington gets to choose the lesser of repair or replacement that is a another that's part of the last provision in the policy that lexington gets to make that decision so the repair now they could've put forth an expert report they could have put forth a rebuttal report they could have put it in their experts affidavit that no i disagree with mr walker's that's not the correct like they didn't do that there is no contradicting evidence from u b c on that issue and that's why summary judgment is proper that's what doesn't broad relied on and that's one of the breach of contract claim there but that we don't get to that  and lexington the policy gets to make that decision i made the decision to replace not repair now that they actually so the testing is that the actual white cut in quality repair would be to just repair the top what ended up happening was lexington agreed rather than in trying to get an agreement with the church decided ok even though the light common color pair which is the undisputed testimony would be just to repair it we will go ahead and allow you to replace and pay for the replacement of replacing it with an option the pay had totally apart from that it's something they did to try and resolve the issue right which are some i mean but the point being that the insurance policy gave them that option it gave them the option that they could have just on the pair but that they chose to replace is mopping they did not choose to replace judge what they ended up doing  compromise with their pulse with hair or did they replace a thought they were playing a pup the whole point was they replaced the roof they ended up allowing for the replacement of the roof but they were eager they replaced the rear three didn't they reply story that they paid for the replacement the rift ok but the underdog in the industry test was that the light kind of quality repair which is all that they're obligated to do and policy would just to have been to repair they replaced the roof but they replaced it with something different than that which they repaired because it was two different kinds of the day they have to either the option to repair or replace and they chose replacing that is if that's just a straight forward question they had the right are you standing are you saying as a matter of law they had the right to replace and that's what they did in the discussion on it so it's not a trick question i appreciate it repair or replace you are going down you're entitled to damages as a matter of law because the contract the roof was ripped police but it was replaced with a different quality of material than the repair would have been and so they chose the repair option but so they are allowed to do the policy car but the insurer will say no no we'll pay for repairs make it as good as new and everybody knows it's never as good as new when they repair it but the insurance company you quote replaces it with let's say exactly the same car but one year earlier model right it's rather similar i mean most insurance would be happy with or with a complete replacement yes sure but you earl know words there's no factual dispute remaining about damages what if what i said judge was that the expert for you see did not dispute that the like kind call a repair in this case would have been the repair they don't dispute that there was no evidence provided i asked counsel opposite when he was leaving you know what was two different damages and in he said well their expert had this number our say is this the difference was there so i was trying to hone in on whether there was a fact dispute over dollars and cents and that's what i'm trying to just be clear i hear you of them not being able to accept the proposal from you big sure thing for the code upgrades one of the things that we have to look at and in that the record for when asking her about this proposal i had st ask her about the original contract with jeff eubank roof and there was an original contract that was signed by jeff you made roofing and was also signed by u p c in that original contract it was left open that there's going to be additional code upgrade issues that have to be decided exhibit six which is the proposal is being referenced by counsel throughout i asked her about that and she indicated that she didn't see an opportunity to sign this whereas the other proposal had a place to sign this one does not in this is referring to the original contract that she signed before this proposal and this actual proposal and so i ask her so there may not this may have just been an estimate then from jeff eubank roofing her answer perhaps so they may not have actually been agreeing to do all the work for this price and her response was i believe we'll have to check the timeline to be sure but i believe this predates receiving all the details of the report from the engineer so i believe this post was also simply an estimate like you up having all full knowledge of what needed to be done ok and if that's true then even the church would understand that the cost could have gone up we understood the cost could change we were still waiting that was her testimony in response to bid at least at the time that this proposal was provided  representations or any other actions by lexington that would amount to a violation of any of the insurance codes provision that have been pointed out by you  spoke about november again when we're talking about code upgrade coverage that payment is not due until the money is actually incurred and as the all of you pointed out once that information was provided to ready lexington and there's there's no evidence that license did not pay that two hundred and fifty thousand dollars time in the once the information was correctly submitted to them  there was also a question about when mr taylor was was talking about the fact that the roofing company started before  i'll try to be brief with it out here to his one of his last points the issue is not that they didn't pay which is not that they didn't pay in november december even back in september the issue that not accept or reject in november of this and we agreed that in this situation at least they could have accepted contingent on completion of the repairs with payments coming five days afterwards for the pumping statute actuating by accepting or rejecting when it was reasonably clear the a mallet was going to exceed the policy limits and that's what led to all the other damages in fact i don't think there's any and there's a dispute about it now didn't divorce the two issues of liability vs damages and deal with them separately no where in their response brief or in this oral argument did i hear any contention against the idea that lexington new in proceed as if it was covered no they didn't because the report in fact i think everybody agrees they know that that the language and that in this hearing is everybody saying they never accepted or denied coverage to way down the road in july they never accepted coverage by agreeing agreeing to pay and they never said we'll pay this claim they knew it on november december this was a fully covered claim the proper way of handling it under this to go to a time and materials cost and see what it is that goes along that's not a reasonable way of effectuating settlement that's not within the requirements of the prompt pay act or the requirements of any of the other stature sets the st violation right there only if a jury disagreed with that somehow would you then get down the road into whether they misled the misled the church into not objecting to this time periods where and where is the product give me a citation to the prompt payment all information needed to make the call and then point fifty seven is the one that refers to the time of putting actual payment it's the one that includes a provision a carve out for situations where the insured has to do something before it actually gets the check would not your but you're talking thirty five thousand dollars in anything else that's incurred given admission and denial give the reason for denial under a three that we're not playing that extra thirty five thousand dollars because your policy limits to fifty in hate will cut you a check whenever you finish the repairs that's the