now i know where to look individual named wayne lee for all intents and purposes it's a kind of a solo guy it's not some big conglomerate so throughout these arguments i think you'll you'll hear duane's name just for context that's who it is this insurance coverage case we're here today because the the lower court granted all states motion for summary judgment concluding that as a matter of law mr lee that made a series three of material misrepresentations which permitted me to deny his insurance claim there's a little bit of quirkiness to the facts of this insurance claim i do this a lot and i know mr manning and we've worked together in the past so for context mr lee at owns through american land of us mint a number of housing units residential but this case focused on a large commercial building that he that he alone and he submitted a claim to allstate for vandalism and the act of vandalism was one which frankly is a little bit strange it was he owned a large warehouse that was supported d by a series of beams built you know is built a long time ago and those beams worked were cut into using some sort of saw the way that this was discovered is a tenant a person you may have heard in the briefs of mary lehmann called the police because she heard some noise late allstate undertook an investigation and during the investigation they conducted an examination under oath a process that's not unlike atop a zisha except the rules are a little bit different that examination of growth lasted a long time i think divided into two day sessions and at the examination or oath mr elliott answered lots of lots of questions at the end of the investigation all state denied the claim citing the material misrepresentation clause which is in nearly every insurance policy and we filed a lawsuit and we did some further discovery and the below court when faced with the briefs said that as a matter of law mr lee yet made three material misrepresentations and it's important for focus on what a material misrepresentation is and can i ask you a question i'm sorry it's so so we have your brief and we have the three you lay him out pretty clearly in your brief and it seems to me on the st one and just correct me if i'm wrong in your brief you focus on the knowledge in the nd and rd you focus on materiality is that fair st may be knowledge and materiality so but the nd and rd it seems to me don't focus on his intent as much as the materiality in fact i don't think you focus on the intent at all but i would qualify i think that's on a macro level this is true well i just read the words in a brief so can you tell me if you did where i missed you developing the argument on intent versus materiality on the nd two i'm on the layman one there's no question you say didn't know didn't know she was living there ye all state has still has concluded that somehow he law you did or misrepresented this claim history now whether what he says in his  they've had claims that you know i don't think that this is a misrepresentation had he said these buildings had no insurance claims that is a misrepresentation because he knew they did he didn't that's my point you're not saying he didn't  you're saying he knew and there didn't misrepresent or didn't or it wasn't material yeah i think maybe i misunderstood your point and that's correct so and i think it would apply to the rd also ok and really the and that's ties in a little bit frankly to the nd one because it's talking about property is pretty material the preexisting condition of the property i would probably yeah i would agree that is material to touch on point point one briefly a glossed over it but with the married a layman it's her status as living at the property you're not living in the property mr lee it's testimony is he didn't know she was living there now there's been other evidence presented that maybe is your position if someone says i don't know we can never grant summary judgment under these circumstance no ok so give me a scenario where we could i don't know that she's living there didn't know she was living there i'm sorry if mr leo was which he pretty much did say i did not realize she was living there and we have a grant summary judgment under your theory suppose i mean i still think it could to to be frank i think it would you know just overwhelming factual evidence and that relating back to it being identity because she's a potential witness we would never be here i would never argue that that is not a material misrepresentation it is but what about i don't know if she's living there and there's a lot of evidence that he knew there's a couple people who testified they told him there's the husband died there all these things happened yet it seems pretty overwhelming i think you're talking about a long period of time you know several years that she's a time if he had told her she wasn't going live there the lease says she's not permitted to live there the way the property set up is is her unit is around back not something he's going to go see every single day her apartment her unit whatever the least premises ok and what's her apartment i saw a reference in the briefs to an apartment i think it's what basically happened was the little billy's premises you know she kind of had a bad set up in a makeshift apartment it's not a traditional residential apartment i mean this is a commercial building storefront warehouse it's doesn't look anything like an apartment complex it wasn't major design or zoned for that that's why in the lease that he has ok so i need that i'm sure i'm the claims history i just don't believe i think claims history is material especially when you're procuring insurance i don't believe he lied about the claims history he said there were only the condition of of of insured property is material from if if well thing else than the amount of the claim it's going to be different and insurance companies want to know whether the thing the insuring is worth a one million dollars or one hundred thousand because it's all because it's rotting correct i think with regard to the condition of the property what is being pushed here is that the damage that mr lee it's claiming in this i think the conditions are something that's already damage to the insurance company normally wants to know that in order to determine how much to charge the premiums so i think in procuring ensure that that isn't that isn't material point well but they could also be material if you want before and you didn't then that's a lie the nd time around yes if you lie about the condition of the property that is that is in this particular claim is material to this claims investigation i agree with that so so we're clear there's a judge the powerhead indicated that intent is the primary argument on the st one but on the last to you the argument is materiality we're in agreement on materiality is not the be the focus of the rd prong of this this i believe the truth about the condition of the property there vandalism was not there prior to him reporting th pleas to court michael manahan on behalf of all state there was a interesting term used in the argument by mr rutter that the evidence has to be overwhelming and in this case it is all state's position that the evidence in total is overwhelming and in order to put in front of the court the condition of this property which we've discussed it should be noted that in two thousand and eleven there was a message left with the city health department that there was mold growing in the property mr lee claims that he fixed the mold yet in two thousand and ten he reports another claim to nationwide that the property was vandalized and the vandalism is a group of what you would call squiggly lines all across the roof of this structure you know again unusual and then he makes a nd point to nationwide for damage to the outside of the structure so he claims that as a result of that he fixes the property himself and pockets the remaining not with the nature and this is the condition that he it was never remedied my point judge would be they say that if that it didn't exist at the time that it was insured he yes he concealed the condition of the property  jury decide because it is overwhelming evidence that it's got to be whitely contradicted by the record but if you make it so you can add the st ones easier for me to conceptualize but judge rogers will be better cox versus kennedy or i'm sorry cox versus the kentucky department of transportation fifty three rd one hundred and forty six and booker versus judgment by simply arguing that it relies solely or in part upon credibility considerations or subjective evidence sure but there we've got a case called harris we j b where the person says i don't know and we makes a equivalent statement and we say look if they testified yeah they can't in their brief but if they testify to it then why is credibility question for the tour because there are so much other overwhelming evidence there are records documents letters multiple with it he alleges he or he agrees he received his wife received and gave them to him that show that she was living there and the material aspect of that is that she had a commercial leash lease with m and when this call was reported a knish of lee allstate said well she had a commercial lease she couldn't have any knowledge of what happened there in the in the evening hours because she wasn't there and it later turned out that we you know allstate through our the investigation found out that yes she was living there her husband died there as you pointed layman's as good as gold so she's she's a credible witness but you know as you say is that you know there differed differences and do they differ yes but the fact is mary layman testified after being asked that this vandalism loss really didn't occur as m and when i say vandalism i apologize this is the ultimate vandalism claim in november of two hundred and one thousand seven hundred and fifteen i'm sorry and in arrives he observes this extremely unusual it's just it's beyond belief actually worth three quarters of all of the support beams to this huge structure have been sawed and no is there vandalism occurred still talking about mrs lyman now yes yes and i'm going to i'm going to go back to that you're also talking about the conditions the archer yes but that it also was the timing here feel bear with me for just thirty seconds so this layman says that she doesn't hear a chainsaw the morning that this allegedly happened but she does hear a cha saw three or four weeks before that and kept her up for an hour in the only person i had access to the property was mr lay out so that's where the materiality of press item to an item three that would be signed or stand it now with respect to item three it's not so much materiality but rather whether there's a genuine issue of material fact as to misrepresenting the value i guess at the time they signed the contract or no at the time that they did the investigation i guess which one is this he has had multiple coins and never repaired this number three involves the condition involved and do you know you're saying that there are mold of all of them prior litigation made it unquestionable that he knew about material conditions i'm sorry he knew about because i'm some of that play i saw him with a motive as to why he was what we believe to be cutting the posts i understand facts are you know just to see what you have to answer from your opponents perspective he never conveyed misleading information about the condition of the house what part of his testimony in these sworn statements quasi depositions with a different company he there was an examination under oath in that case and they documented that there was mold you know you're saying it's incontrovertible that he has changed his may have transcripts of it i'm just trying to get where where where where you're on the firmest ground i mean he he did not tell us the nature and extent of the problem of them even though he had previously under oath told something yes know it it is clearly there's a lot of overwhelming evidence there's a i don't know if the claim here has been addressed in the record but th was also a coin for bad faith claim handling and based upon what i believe that wasn't raised on the b s correct so he did it was all right then thank you very much any other questions i know it's a confusing fact better please the court just briefly on rebuttal and i'll just focus on the rd problem mr leo it's exact money from his you all as i put the brief is all four of those buildings on salt sulphur walnut street had several claims in the years preceding the matter arising in two thousand and fifteen so there's no hiding anything during this process mr elliott came right out allstate asked about prior claims told d them about prior claims what they want to do or investigate with those per claims you heard is that the language you are well i think what he's referring to is miners body things that are wrong i think the claims were actually larger than mine or spotty things but he told them what those claims involved i mean we're talking two thousand and eleven you know in two hundred and one thousand two hundred and thirteen and this is fast forwarding to two thousand and seventeen he did some reporting we looked at his previous testimony  credibility thing whereas just parses it's classically jury yeah i don't think that they can be contradictory because what he's telling all the state in two thousand seven hundred and eighteen is their word these previous claims he got it he's telling them generalities about here's what happened it was there was a roof issue and there was some vandalism it it's really there's no hiding the ball he had i didn't one hundred percent on the side of if he had told them there were no claims is not an issue and that would be clearly immaterial misrepresentation but he's telling them do with what you want i don't know what i don't know how you type it back to post being caught because that has nothing to do the post but the vandalism of these posts it's just whether whether the insurance company needed to know that information in deciding whether to grant yeah and they could do with the information with what they wish for him to do more the claim for mold the united ohio eventually filed a dec action against him for actually something to do with the roof and it was never really contested and there was a default entered against him on that front his argument was really with the contractor there wasn't coverage for that it was a faulty workmanship exclusion but it  yeah this involves thomas beavers getting into the act and him not doing his work and there is some testimony about mr bieber falsifying an insurance document this happens all in two thousand and eleven fast forwarding to two thousand and seventeen though plot the cuts in the post were you were not there an act of vandalism is reported he files a claim based on those cuts in the post and then there's of a lot of he said she said i think we can summarize is there's a lot of different facts going on but over the course of you know seventy eight hours of a to date examination growth this really a toll all state truthfully everything that they asked about whether it was mary lehman tenant she was there whether it was prior claims there were prior claims of course or where he was not hiding from and as for the condition of property when we're speaking about these posts he he's saying i i never saw the post cut and i came cut what about the other condition where they the initial klein with this insurance company that supposedly was a replication of a klein that he had already made and been paid for with another everything got one ped into one investigation and i will that bold claim was paid hart before it really before myself or mr mann got involved and then it was kind of re investigated but i think the focus of this whole case is these posts it's a big problem it's going to be a pretty significant claim and the question really comes down to did mr lee yet tried to deceive all state about these posts and he didn't he even though he couldn't they have this is the the one difficulty i have with what you just stated you could assume that the posts were cut in the way the your client suggests right which is recently independently of the condition that otherwise existed oh you keep coming back to the posts but why isn't it material what the condition is of the property affect their analysis of everything to see that this people are more likely to destroy their own property it's not worth much in a company wants to know whether this property was valuable or whether it was a piece of junk beef in investigating whether the owner had something to do with war didn't have anything to do with the damage which is being insured the company's going to is is going to want to know that it's part of part of their decision as to whether they think that this was was was cut down in the way that that you contend it was cut down right so it was not just the condition of the posts it's the condition of the property that that that that cutting the posts destroyed but typically when you're procuring insurance the condition of the property is paramount to the risk you have to assess to a premium i mean a property allstate assessed that they could have done whatever they wanted to do to investigate the condition of their property before they greed to insure it some two years before the loss they also when we reported the claim had unfettered access to the property so they can they can assess judge that however they want but i think for purposes of the claim what the focus is and should be is is what he's claiming did he lie about that condition did he know that those closely go into the st klein if in fact he makes the klein with allstate for damage that had already occurred to the property and been paid to rip to repay or buy another insurance company then doesn't that fit with the on why isn't that a material is she i believe that would be but it just is not the factual case here because six the damages claim six or seven years ago is not the same damage it was was claimed separate i'm not talking about becoming of the i'm talking about the st client i thought there was overlap in the st klein made to this insurance company with the claim that he had already been paid for to her pay or by a prior insurance at st claim october have a number of other cases on our list today but they are not argued so you may dismiss court