you don't know why they're not staying i mean if you seem to be losing your audience i'm sorry so it's a hard act to follow i know we're still here ok but that's all that matters it's our position that the district court erred denying guy goes motion to compel arbitration initially the arbitration clause was not voluntary the conclusion that it was voluntary was clearly erroneous the court focused on the word may in  in the arbitration clause however all this means is that once the decision to seek appraisal is implicated appraisal of what the appraisal of the amount of damage will of loss isn't a yes loss is a defined term in the contract in the insurance contract yes and loss as defined in the insurance contract is damage to or loss of a vehicle none of that is relevant here is what's relevant here is whether the measure of damage is what you say it is or what your friends across the aisle say it is that's the that's what's relevant so what's an appraiser going to appraise the amount of the loss that's that's exactly why the appraisal provision is needed c f it isn't isn't what divides the parties really a legal dispute and i'm not sure what the plaintiff position is frankly and we'll hear about that from them but you say that what they really want is that a court should declare that that you have to pay what the sticker price was at the time that she least the vehicle is and that would you  interpret the new york statute either act and no i'm not wondering what there is to appraise if the if you folks are right about what the contract means then you didn't do anything wrong in hiring c c c to come in and figure out what the market price might have been as of the date of the loss right but if they're right i mean what i think they're saying that's not the right measure at all correct and it's a position the appraiser will come in to indicate whether the forty five thousand i'm sorry to interrupt yes i thought that the the inference drawn from the line of questioning is that if if if they are right then reg sixty four must be interpreted to mean that that the loss is the sticker price of a new car of a comparable new car minus a certain number of pennies per mile it's not for that and for that why do you need what is an appraiser going to do with that it's not the sticker price it's the reasonable purchase price yes but i'm thankful issue and if you're right about that then i don't see what the need for an appraisal is because the appraisal would seem to me do just what you hired c c c to do and w go out and make estimates of what are the reasonable market prices by testing the waters and then they'd say here's our number i'm trying to wrap my head around what a car appraiser is good is going to do what you expect him to do i mean ordinarily a carer praiser looks at a car opens up the hood looks inside sees the mileage and says ok this car is worth x dollars we're not doing it here we don't have the carriage in the right we don't need the car we're opposite we don't need the car because it's the loss of a comparable vehicle  sixty four yes but they're saying that's not what it means so really what you have i'm not sure i understand what the measure of judgement by a corporate issue but it seems to me what you have is a legal question that needs to be resolved  because if you are correct as to how what regulation sixty four means then there's nothing wrong with what the what your client did and i don't know why they'd be need to do it again or to ask three independent people to replicate c c c's work but if they're right about what the regulation means and the insurance contract means then there is no need again for an appraisal because what you need to do is just check what the i'm not sure what they're actually asking actually bell find out when they when they get on with it i'm saying i do but it's our position that this doesn't concern the scope of coverage there's no coverage just as i  said i don't know why you call the coverage but it's a legal question about what the measure of damages properly is but it's our position that reg sixty four the recent purchase price doesn't equal of market value to adjust the total loss and that's what c c c did here so they use the correct valuation but that is a legal question it's it's our position that it's not it's a value question as to the amount of the market value to appraisal is a disagreement regarding the value so yeah there was a disagreement as to the value but geico didn't know when this disagreement came to be the filing of a proof of loss would have given geico timely indication policy the submission of a proof of loss it's our position that while the policy doesn't say that and here there was not a proof of last file then the mere fact that that's because the insurance company has in its mind that there's this form called approval was but the policy doesn't say that well it's yours and so and so my question is why shouldn't we find that especially because the policy doesn't define proof of loss that proof of loss means enough for the insurance company to to show that a proof of loss which means a sworn statement indicating what actually was last was submitted and that's our position that that was not done here good good work it's to the extent that you're asking is it also an appraisal request yes it is also if an appraisal requests and i think to sort of follow up on some of the questions that were just being asked of  this case i think the issue with the appraisal is in every circumstance where an appraisal needs to be done the appraisal will need to follow certain regulations i've done this a lot for and we have gotten appraisals in other circumstances there are always regulations or guidance that an appraiser needs to look to that is what they do that is very common to them in this case they would look to regulation sixty four and so in this case you would have a situation where a panel of three appraisals appraisers would look to regulation sixty four and they would come to a consensus view of the value of the vehicle and that is really a value of what view of the last vehicle of value the replacement value for the last vehicle and that is really at the heart of the replacement value exactly the statute has a very particular definition of the reasonable purchase price as of the date of loss and that's the that is the value that we come to that would comply with them with contract and that is what milligan is claiming she was underpaid on and that's the basis of liability from the c c c as i understand it was to go out and look into the market to see what was actually being charged at or around the time of the loss i suppose you can't necessarily find the sa case as to it yes it separately did move to this and how was that resolved the breach of contract case was dismissed the negligence claim and claim the negligence claim was dismissed what exactly is there  hired to do a particular thing and you did that particular thing and maybe it was the wrong thing but i don't know how it could be up to c c c to second guess what the insurer asked for the insurance said go out and figure out the market price and you went out and did that and maybe new york state law says that's not what the insurer should ask to be done but i don't see how that's your problem well certainly that was a position of the position basically that was the position we took on the sez i think should this case return we would refile certain positions and but in the interim well that plaintiff is attempting to hold c c c jointly and severally liable and alleging systematic schemes and conspiracies we believe equitable stoppel on the compelling of an appraisal would be appropriate here and that is not an issue that the district court addressed only sure whether it's equitable stoppel or not you see i mean the equitable stoppable issue determines whether you get to have a derivative claim to magistrate judge said there isn't a need for an appraisal and that's the argument the geico is pursuing if the magistrate judge was right then you don't have a right to an appraisal either that's independent of geico his right to an appraisal if the was wrong then there is an issue that hasn't really been addressed by the magistrate judge as to whether you get to participate in that appraisal process or not but the primary question that's before us is just the main question the measure a good right that there should have been an appraisal to the extent that well the the single sentence that was dismissed motion as moot did not provide any analysis of particularly why it was made as i read it it was because maid please the court good morning your honor is my name is keith altman from its goal i represent the plaintiff in this matter explaining because i don't really understand what you think is the correct measure of loss in this  reasonable purchase price less your deductable reasonable purchase price as of the date of the last correct which presumably if it's a new vehicle is going to be another new vehicle right ok and presumably the sticker price will wait but doesn't the price of the vehicle the actual replacement cost the actual reasonable purchase price vary over the course of the model year i don't agree with that your honor that's now you're getting to negotiation the skills of a person who walks in on the same exact day what would you call the person who walks into a dealership and just pays the sticker price this is not maybe not the same negotiator is somebody who's very sharp in negotiating my point is is that you can't have the purchase price be dependent purchase price you say that the sticker price on a brand new vehicle in the beginning of the model year in october does not as accurately represent the value of the car the following september just before the new model is introduced maybe or maybe not but how do you determine that your honor and that still you determine it essentially the way c c c did no other once the question of what is a reasonable purchase price as of the date of the last is what the market is offering on the date of the loss which is different than the date of the purchase how does it how does a how does anybody say what somebody could walk in that somebody could walk into a dealership on any given day with a brand new vehicle with a sticker on it and say they could buy that for something different than the sticker price and so he saw it happens every day but you simply can't do that in a way that you could possibly quantify it and he said does that how does an appraiser says the c c is in business but there's a difference there's a difference your honor because here a reasonable purchase price is the sticker price for a new vehicle and they did that has to be your position because you're really suing on behalf of ms milligan and on behalf of all of the similarly situated and therefore it can't be a matter for you of whether the proper appraisal price here is forty five thousand or forty six thousand dollars that can't be of interest to anybody else your position has to be and it is that the that  way to come up with the proper appraisal of a proper price under reg sixty four is the sticker price of the comparable car comparably equipped well here i missed appreciation but here's what's an interesting thing you're on right i am i correct or am i wrong are you are correct myself i'm talking to you you are correct but i'll show you something coming from the other side here's the other defect in what c c c did number one they did not use nuclear but maybe you've already won your case as far as what we have to decide here today which is is there a need for an appraisal you won that below because the district court found that there was no issue for an appraiser the issue is essentially a legal appraisal and the answer it seems to me is no you say there is nothing to appraise as a matter of law the sticker price is the answer they say no the reasonable purchase price as of the date of the last is the market price however that is to be estimated in the real world as of the day of the accident that made the car a total loss that's a legal question that ought to be resolved by a court starting with the district court which hasn't decided it yet and maybe eventually depending on how it comes out and what the parties think and whether it's settles or whatever else happens by us is that not the end of this case i agree your honor and just in case there is some question as to whether they properly invoked the arbitrary in the appraisal claim in the first place which if they didn't then it's even more of a moot issue well here you're saying that because they sent a check for forty five thousand  there must have been a proof of loss but if you are correct if you are correct then insurance companies are not going to send what they believe they owe promptly to people who need to replace their cars they can away litigate it and  and that doesn't make any sense at all but your honor it's also something different on july first two thousand and fifteen i mean specifically called the adjuster and the whole regulation sixty four thing became aware  go and i read reg sixty four and that's when i come to find out this particular no i know that's not an issue now memoirs but i told them you should be willing to take yes yes answer ok yes i do still wonder what it is that puts the c c in here because it seems to me that the insurer decides what it thinks its legal obligations are and what it thinks its policy is if they're wrong and it turns out they're not complying with the law they're on the hook but an appraiser or someone like c c c has a contract with the insurer the insurer says here's our interpretation of the contract go out and do what we're asking you to do they went out and did it i have trouble understanding and again i'm just putting this out there we're not going to rule on that that's not before us at all but i think there should be some rethinking about what is the claim against them that they're somehow conspiring one all they're doing is a mechanical task that they're asked to do by an insurer based on the insurers interpretation perhaps according to you totally crazy wrong of what the contract means they don't have a contract with you or deal just very quickly it's our position we'd like to reiterate that it's not a legal issue that they should go back for an appraisal an appraiser to determine what the reasonable purchase price as indicated in regs sixty four was on the date of loss and that's not a legal issue clarify i think one point to the extent that the court has determined that this is not a legal issue and we do believe that it's i will just reiterate what i do think it's a factual issue appraisers do all the time have to apply certain regulations  still believe that it's entitle to press for the appraisal thank you thank you we'll reserve decision and at this