may please the court my name is richard simpson it's my privilege privilege to represent alliant insurance services in this appeal the trial in this case the second trial in this case went badly wrong from the very beginning and it went wrong not because of an exercise of discretion under proper legal standards but because of a series of decisions made under wrong premises under premises that are simply wrong as a matter of  of those because it is more than one the district court began with the premise that the jury at the first trial must have found all three types of negligence that were included in the jury instructions and that's just wrong there were no the jury instructions said you can find negligence based on one or more of three things one was the limit was reduced without authorization consent or knowledge the second was basically negligence in not identifying an error indorsement three and the third was negligence and not communicating with the right people the district court said we have to presume that the jury found that this reduction was made without knowledge consent or authority and that's was wrong with no special into raga tori's we don't know what they found and then later that was towards the beginning of the trial in the jury instruction argument when we argued that the court should not instruct the jury that our negligence caused the reduction of the limit which the instruction was given over our objection the district court said that and we posit alternative theories by which the jury could have found liability in the first trial without finding that there was knowledge consent or authority or no knowledge consent or authority the district court said our view was not a realistic view of what likely occurred trial well again without special interactive tori's courts are not are permitted to speculate about what a jury likely found whether or not one would consider it likely the jury instructions allow the jury to find liability on a different theory and we can presume they didn't the third is the assumption the premise rather for the district court's decision that the jury necessarily decided the negligence claim before it decided the ratification claim and if you look at the jury instructions that page a one sixty seven to one sixty eight that again is just wrong the instructions talk first about negligence and they in a reasonable juror reading those instructions would rightly think we don't have to come to a final conclusion on negligence before we talk about ratification we can talk about the whole package because the only question asked of us is is there liability on negligence and subsumed than that one question is ratification so that is also wrong i should mention that the quote about not a realistic view is at page a one eleven seventy that's the one page it's not size not cited in our brief we cite elsewhere where the judge says that you must presume that all three were found so that's the background and then when you get to the first day of trial the parties as as our brief makes clear the court after the first trial granted a new trial and the order tried twice says granting a new trial on the negligence claim of the ratification defense not a hint that it was anything else the parties did their pretrial submissions on that basis the and whether negligence and ratification are separate concepts that's not the test the test is you don't get to this issue it can't be a partially trial until you conclude there's an error in one part and not the other part the appropriate test is are there to sufficiently interwoven that it would be prejudicial that it would be confusing to try to together it was so confusing in this context i mean you don't get to read it whatever the first set of that when you have all the same evidence relating to two issues and the said what they say there is the second jury looks at all the evidence but they're told you can you can't make your own judgments about that evidence with a fresh start you have to look at all the same evidence but through the prism of being told what that shows on one issue it's inherently confusing when they have everything in that way and the other thing i would i would say is if you look at how closely in n they are particularly the proximate cause element of negligence that has to do with whether what negligence you find the negligent act resulted in the lower limit when the hurricane came ratification goes to affect the outcome of negligence because they were the jury was told that approval can't be by silence rack we had since and if the jury is looking at the very similar issue of was there proximate cause from whatever negligence we found there again is the overlap there of well if they knew about it and accepted it maybe there wasn't proximate cost again the cases reflect that the problem problem with one can affect the other but the key is the overlap your honor just completely overlapping facts exactly the same evidence and that came through the evidence presented wasn't changed one iota by this decision and yet we our district judge obviously is a brilliant judge no question about that  acknowledged again we didn't cite this exactly what we argued in our brief and it's apparent i think that this was a spur of the moment decision we were there was no briefing there was no argument other than just before the jury was impaneled but the judge acknowledged that appendix four forty eight and appendix four fifty didn't focus on the scope of trial until the morning of trial and so simply a matter of it was the wrong legal standard we argued the two are intertwined he acknowledged that may be true but it doesn't matter when in fact it's reserve the balance of my time for about on lesser additional questions i will address at that point thank you may please the court thank you for the opportunity to appear my name is dennis d'antonio represent the left out and be that as a result that your proximate cause the coverage limit was wrongly reduced from thirty million to ten million you must find liable for negligence so since of the operative word there is wrongly if it's wrongly reduced it's not with authorisation that it's necessarily a fact that was part of the instruction to the jury at the first trial alley  argued that they had authorization to reduce it that was rebutted by a plethora of evidence and the absence of evidence is there was not one single piece of evidence that supported that and the oral testimony they relied upon by someone named not you to read ski he changed the story four or five different times and no one it alli odd was ever told by mr touretzky that he had received the oral authorization in a yes somewhere to read that's and that's a very good point that's worth mentioning when this when all the art was given the opportunity to place this coverage and earn the commission that would have gone with that they were given a set of written specifications mr gerber who is the us he's been doing this thirty years and they've written instruction was i am the only person you communicate with i make all of the decisions and anything you do that materially affects this policy must be given to well first of all the vice president testified that he's not involved with the insurance that it's delegated to mr garber and your honor it's important to understand what i presented at trial which was that this was not the kind of policy you were i would buy this policy was for billions of dollars involving one hundred fifty locations throughout the country with all different intermingled corporations and partnerships of ownership and different mortgage standards that would require different insurance limits required and it was one of six programs of insurance written on cam of these assets so the vice president was the son of the founder of the company who spends ninety five percent of his time on finance and acquisitions he was he never communicated directly he sorest c c email he actually they see see him on an e mail to his secretary speaking to this policy and he said he doesn't even recall having seen it the secretary testified that that she doesn't know that he sort that he gets hundreds of e mails a day and she frequently asked some questions and he doesn't respond to responds with yes and your honor there's an e mail that we put into evidence afterwards in august after all of this alleged knowledge were another person representing one of the entities says i spoke to ellie schroen the vice president and he told me we have thirty million dollars worth of was contradicted by tons of evidence to the contrary as both juries found because if he the jury found that we had authorized well ratified we would have lost the case and go into the question of the retrial the judge you cannot come to ratification without their conscience it's it's it doesn't exist ratification can only be addressed by a jury if they find negligence the jury at the second the second trial the first trial sent two notes to the judge asking for clarification on ratification clearly having found negligence and now they're working on whether or not there was ratification and the judge reversed himself on the plaintiffs who the jury did find in playing to its favor and negligence require the plaintiff to now come back and prove negligence again in order to rehear the ratification because the only ground to give the the second shot was the inadequacy of the the ratification and judge rake off clearly intelligently rightfully said why would we try and negligence again if the jury charge that created the error was on something that could only arise after i told the jury that if you find that it was wrongfully reduced then you must find negligence unless the is ratification and the judge said so try ratification if you convince the jury that the plaintiff had that the appellant had that the epically had knowledge or subsequent to this and ratified it through silence or otherwise then you prevail and there your second shot and that's the cure to the ever in the first trial which was the inadequate charge so the case got tried a second time i might add there were no objections from opposing counsel to the fact that the se quence of the trial was changing i was the one who objected but i was overruled also they argued with you well i did want to once i did my opening statement i want to go first and the judge said no the burden of proof is on the defendant the defendant goes first so so they presented their witness they would have to show the judge in his decision cites ample authority that he has discretion to do that and also appellant fails to show any prejudice they argued that because of that step that i was permitted to control the sequence of the trial the judge points out in his second decision that i only called one witness was all of their witnesses they withdrew their objection to taking certain witnesses out of turn who they had flown in from out of state alley aren't employees and also i have heard  arguments to this court that were not briefed below that are being essentially argued for the same time just does judge reg off pointed out that they didn't object to the original charge on negligence as it was given that  required proximate cause that required wrongful conduct a wrongful reduction of the coverages by ali aren't and once the jury came back and found negligence in the first case there is no story evolved over time ultimately resting on a version of authorization that was verbal with no corroboration lots of whether it was she aki to me in fact that the fund that the second time they tried the case instructions even though there was there was no evidence to support that and his own colleagues at alli ont had different versions of what matthew had told them so they were given every opportunity to try the case twice they argued negligence twice because even in the second trial they argued that they had authorization even though they should have been permitted to do that and at the second child they got the charge that they wanted with respect to ratificat recognizing that silence could be ratification and again the jury found that there was no ratification and if the jury found that there was no ratification then the jury could not even if it had been given to them have found negligence because then they would have found that it wasn't wrongfully reduced from thirty billion to ten million so my our view is that i'm not realize i'm done but is that the peel is much ado about nothing this case has been thoroughly heard and correctly decided and it really should and that this point arcane c n d is a distant memory and this case should also become a memory what exactly was the verdict of the jury there was no dispute with respect to damages so if in fact the jury found that the policy was reduced negligently by alley on and they didn't accept allianz defensive or adaptation that  on the hook for the difference between what the policy should have been and turned out to have been so is a thirty million dollar policy the binders the policy everything said thirty million but was actually ten million because of the actions that were the simpson you reserve three minutes thank you your honor just a bronze that question about what did the jury find is critical the first jury only found one thing passive alliance liability for negligence everything else was wrapped into that question including ratification and proximate cause it was one question all wrapped together and so we don't know how they got there we only know that they got there and it could have been any of several different ways some of which do not require a finding that there was no authority knowledge or consent the jury could have believed mr trescott testimony that mr schroen told him to reduce it and still found against us found against online and judge goldberg to your question about gerber mr gerber being cut out that was a disputed issue of fact at the first trial at the second trial we don't know if the jury found at the first trial he was cad or not because again there are ways they could reach that verdict finding he was cut out and they found and finding that mr sharon had authorized it there are ways they could get other results we don't know what they did but you can't say the jury found that because we don't know as far as the knowledge and i do i haven't mentioned the motion for judgment  matter of law on the get fully briefed but your arms question about that e mail as of that point mr sharon's knowledge is a subjective question did he know or did you not know there's a mountain of circumstantial evidence that we cite that he didn't know he said i didn't read my emails i don't pay attention well he is the vice president charger insurance and he's an insurance broker who got half the commission for this this account but put that aside the circumstantial evidence says that he knew he writes admits it says we have ten million dollars of coverage this is the day after he got an e mail saying we've reduced it to ten million here's your lower premium so that's a clear admission and if that e mail means what it says he had knowledge and he took  lower premium he was explanation if this notion well i thought it was the national flood insurance program a five hundred thousand dollars per building times the twenty buildings in that complex there are twenty buildings in the complex and in our reply brief we go through at least seven or eight reasons that that is preposterous now it's very rare for a court of course to look behind a jury verdict but there are cases including the rojas case that we cited in which you ju think judgment as a matter of law is appropriate but if not surely it needs to be retried precisely because of the complete overlap of evidence and close issues and it's not a discretionary matter when the court applies the wrong standard as i said this this was clearly the wrong standard and and it was the wrong standard for when you have to complete a retrial and it's just wrong to say i can infer what a jury found when