case number one five five four four two dear meyers and all of the egg rule logic insurance services at all or argument not to exceed fifteen minutes per side eric will be a pin for the  case before the court asking the court to remand this case back to the district court for further proceeding it is our position as stated in the brief that the granting of summary judgment in this matter was not appropriate at this point in time if a court was so allow i can address certain issues that what i've been asked to present within the subsequent order that was sent i received a directive to be able to address the issues of hensley versus state farm it is the appellant's position that is exactly on course on core with our issues here in addition to the parties not having equally equal bargaining power at the time had not accrued until the expiration of the until long after the year that has been stated so is your position that the cause of action notwithstanding the language of the contract did not accrue until after the denial of the claim yes ma'am and so we should measure the time whatever that time period is from the period of denial yes moving forward yes when the as the facts would indicate there there was a there was  work that was done by way of investigation the records also indicated during that time period now why clients will concede the smith there is also the case and the any and all other matters that would say that the year  limitations that they signed onto were ok but we don't think that the cause of action began to accrue until we got that denial letter in march may ninth of two thousand and thirteen i'm sorry if you made reference to the smith case but are you saying it isn't on point are you saying that it shouldn't control even though it's on point i'm saying that it shouldn't control in this matter your honor said because the cause of action did not accrue in this case in this action first of all there was a confusing and the position of the contract was confusing there in the first place because section sixteen different from that section seventeen within the contract it actually called for the year but it actually interpreting the same the same statute in the same type of contract i don't think so so i think the case that we have stated here the hensley case actually suggest of the equal of an equal bargaining powers and that any contract of this type must be within public policy we would respectfully argue that the contract as it stated did not clearly is clearly outside of public policy because if it would have in our opinion it would have been with input public policy the more prudent thing would have been to have that party initial that same section as to when it would have started as the when their rights to sue would ended by i understand that hensley supports your position from the court of appeals in kentucky but is it not that hensley is is on appeal before the kentucky supreme court and do we have any notion of what's happening in that appeal i'm sorry do we have any what i mean is i as i understood it that  hensley is being held in abeyance pending riggs and riggs has been argued now for nearly a year i don't know if you have had anything to do with that case or any interaction with the lawyers there one of the reasons that i think we asked for for the counsel to be prepared to address those two cases is the question of will the kentucky supreme court likely resolve this issue because of course we're interpret in a matter of kentucky law in either case and so i just didn't know if anybody had either practical or legal arguments with respect to what's going to happen the kentucky supreme court decides that case i would think that given this matter this is the first time is a case of first impression and this is the first time that an issue of this type has made it this far i would think that you think there's going to be some it doesn't doesn't tell us anything about it i think smith would tell this smith tells us a lot if the parties were on equal footing and there was a total understanding of what's gone on as stated in my before this court my parties were of their farmers they were of education to where this is a standard contract a standard insurance contract a standard insurance contract which favors them is our position that not only the this affect the right of a cruel as to when the parties would have had a right to sue but in dition only it acts as a way of this but how is that different from smith smith were homeowners  pike county kentucky versus allstate which is a lot bigger than the misters ms smith up in pike county yes so that's why i'm asking is i mean i i didn't read smith as saying the parties were of equal bargaining power that it wasn't a standard contract i don't think that i think the real difference between all that here is that during the investigation time period there were certain things that would have happened to where the parties didn't know whether or not they were going to the the actual contract was going to be breached at that and so our position before the court is that they didn't know that there are going to be an actual party and thus i'm looking at this him for the case which actually states that contracts has to the contract has to be within public policy you know actually spells out the four principles of insurance policy consideration and that these things have to be construed on behalf of the insured and i'm asking this court to recognise that if we're looking at contracts and we are asking them to favor the insured i don't see how we are not should we should not be allowed to have this case to be remanded for further proceedings tell me how the defendants investigation of the case prejudiced your clients if if that's an argument that that the manner of the investigation somehow prejudice your client well first of all the contract didn't call for what would actually happen in the investigation again this is a standard contract so my client didn't would not have would not have known to have entered the contract or what are the rights and liabilities were if they didn't know what investigation was going to take place in this particular case there were some irregularities where it with the first adjuster was to make new yes so that somebody would have to somebody actually took that over now all of that was within the year time period that defendants would allow was from the date of last so here's my client not knowing when his rights  i would say i would go as far as to state the defendant is trying to control their actual role as a potential tortfeasor because they did not there is no way of knowing how everything would have turned out and as it was at the time of denial they would have given them an unreasonable amount of time to secure counsel you know for council to have looked over the terms of contract because it would already been in force and then turn over certain  actions to where proper lawsuit would have been filed within the year within the i don't really think that if we adopted the interpretation of the ensure here as to when the claim arises that under some hypothetical situation a claimant could actually be foreclosed from ever filing because the time with perhaps before that and i mean that we are saying i'm saying exactly that your honor i'm saying that it would be an unrealistic time for playing for a plaintiff t d or in pro se fashion which that wouldn't happen at this point or even securing proper counsel who would have to and even looking at an investigation that would be done if there is a need for investigation within a year time period then the claimant plaintive appellant should have had the opportunity to have gotten his own experts to rebut what the experts for the insurance company come with came with by way of report and it did done in the denial of the claim so on multiple fronts my client a didn't get the benefit of the bargain b didn't get the time through necessary to see whether he was where the his cause of action accrued and last but not least he wasn't able to rebut anything that was done by way of a report so it's he's kind of like look paid me then then you don't get in the reports of the experts and the answers that's what that's why litigation takes a while all they had to do within the year you say we lost our crop pay me and they didn't pay me they could've said that within the year but then again we didn't know when the year would have started again we're talking about people with minor education because they're farmers here and they did not know that they were an aggrieved party and if the contract was interpreted to be of benefit to the insured then the insured while paying the premiums on this contract did not get the benefit you know whatever investigation that was done we don't know if that was prudent we had no way of knowing and if this case stops where it is we would never have any way of knowing because of that year provision we we argue that the hems of the case should be for dominic as to giving our clients the opportunity to see if they're an aggrieved party to hire their own experts to see if insurance coverage was warranted to be able to litigate accordingly but would you would you have the year run from a date of denial or from some date of discovery that they were in agree you seem to use the term aggrieved party would that be a different time than the date of denial rule to be the same as the date of tonight i would have say i would argue before this court to be the day the dial because that is the affirmative time period where plaintiffs now know that i have an adversarial relationship with an insurance company that we have paid into they did not receive the benefit of the bargain at all and they were left with an unrealistic time period without counsel because it is our position that if the contract would have been noted as to the last date and this is your last da number sixteen if they would have signed that contract couldn't know the last day because the laws had happened right the contract is signed you by the insurance than the loss happened somewhere else in the future well again this is a commercial contract so it was just uniform but they did not think your time's expired looking like leagues have further questions ok you reserve any time for rebuttal you'll have that its core this appeal seems to be about the tension between two commercial parties right to define their own terms and whether there is some public policy in play that would override their ability to do that  date of loss and that was the date that the parties agreed by contract that the date would accrue and it is ira logic's position that private parties to a contract can set their own accrual date independent of any default date in a statute and occurs you know let let thirty day one the claimant filed within a reasonable time and i'm going to find what that is and then whatever reason investigation whatever the  insurance company doesn't deny the claim until that third year in a day later while hypothetical if the period if that if the time for cruel  that in that situation i think there were two options one would be for the plaintiff to go ahead and file suit because the reality is their claim occurred on the date of loss they know that they have a statute of limitations that runs from one year and any prudent plaintiff would do that or the other alternative would be tolling agreement which is common in personal injury cases especially have shorter statutes of limitations so there wouldn't necessarily be the need for an unnecessary protective suit tolling agreements are always an option and i do think it's important to point out here  one of the points raised by mr will begin is the fact that there was only a short period of time between the end of the investigation or the denial and the date that the statute ran and he noted on a couple of occasions maybe  the lack of commercial sophistication of his clients but i do think it's important note that these clients were represented as of the date of the denial prior to the date of denial and it's difficult to believe that any attorney representing plaintiffs out i don't know that it's an untenable position you know one difference i think between this type of insurance and the uninsured motorist type of regime that's at issue in hensley you know the uninsured motorist statute is part of a mandatory insurance scheme in kentucky that requires all drivers of automobiles to have insurance it is a much more consumer oriented regime because everyone has to have that insurance and so in that situation i think it's more true that there is an equal bargaining power because people have no choice but to have that insurance and applies to almost everybody so there's going to be people of all ranges of sophistication i do think it's important point out that these  business and so while it might be the case that these plaintiffs may or may not be sophisticated in contract matters across the board many farming operations are and i don't know that it's always the case that crop insurers are in a position to completely control terms  entitled to reach their own agreement their own private agreement as to when claims accrue and what that period of time will be within which they can file so you know obviously you have the kentucky for insurers to have shewed that period can't be less than one  year so it has to be one year or more but private parties ought to be able to reach their own terms on something like this and it's not as though this limitations period was written in a confusing fashion or in fine print it was very clear in every day do you lose i don't think so because his lead deals with the universe of you i am coverage in the m v already which i think the court in elkins noted that you know it comparing the m v array regime to the commercial private insurance regime that we have here is apples to oranges again the in theory is part of a mandatory auto insurance scheme that applies to everyone there are different considerations they are one of which being and this is discussed in his lee you know the one year period issue in some of those you i am cases conflicts with a separate two year statute of limitations for the entering to our claim so there is a there's a mismatch that has to be laid and that's a separate issue perhaps that's and i don't see where there's a valid distinction between this policy and that policy on the is who cruel so maybe you can enlighten me well i do think i don't believe is is a good interpretation i think you know there's there's lots of language out there in the case law that if you know if the legislature intends to say something they'll say it and they didn't say common law cruel they didn't say a cruel pursuit any particular statutes they just sort of cruel in the shoals case which is still good law in kentucky makes clear that the parties to a private contract can modify the accrual date by agreement even if there is a separate accrual date in a default statute now in that case it was it was a it was a professional negligence type statute or the date would either accrue on the date of discovery or the or the date that the point of should have discovered in the parties in that case decided to have the claimant issue one from substantial completion and i don't think this case is any different than scholtz in that respect these parties there is a default statute but these parties have decided to fashion their own agreement as to what a cruel means and again these are private these are private parties to a commercial insurance contract a private insurance contract not part of a public a mandatory insurance scheme like the motor vehicle reparations act and i think the case which as i understand it is is being held in abeyance pending henslee isn't that even more squarely on point to this issue i don't know the status of rigs or when it will be decided  again i don't believe that the foreign insurer statute can be interpreted as prohibiting private parties from fashioning their own agreement as to what accrual means fundamentally will isn't i mean  en i guess maybe i'm wrong but in rigs it seems to be that the the exact question is is a time limitation that dovetails with the limitation in the statute which in this case is one year  is reasonable and comports with public policy the dissenting judge says that it that it is reasonable and it comports with public policy the issue raised by judge donald the other two judges said no which would seem to be contrary to your position and it isn't isn't the kentucky supreme court if they decide that one way or the other squarely on point with this i think they're squarely on point with that interpretation but again  interpretation i think would apply i think these cases are within the context of you i am and i think there are fundamentally different considerations i don't know that you think both of them you think there's no difference between riggs and hensley on that point i think they both are concerned with that time so ok maybe we have a disagreement there it surely seems that riggs is even more squarely on point well again i just i don't believe that the public policy considerations that apply to cases in the u i am context of the  a apply equally to a problem crop insurance contracts where you have insurers who are engaged in a commercial enterprise and are part of a mandatory statutory scheme there i think there could be a more persuasive rationale more persuasive public policy rationale in the in a motor vehicle context because of the fact that it's more of a consumer protection type regime so you're going talking about privately just the if the kentucky supreme court comes out for the insured you still think you have a an alp but certainly if the kentucky supreme court comes out the other way in favor of the insurer in those cases you surely say well that's binding on us  perhaps and would if you have of a policy that requires all sorts of information be given as a prerequisite to in this the way it's construed by the insurer this is a process that's uniformly a seven month process  d nevertheless the cause of action accrues under the contract on the date of the occurrence and you know it's a year or is that reasonable i think whatever two private parties agree to is reasonable but i also think of the insurance context there's a backstop which is the bad faith statute so i think that that in conjunction with the fact that insurers although they sometimes are slow to act typically don't like to be sued so if that insurer knows that the claim arose on the date of loss and that the insured is either going to seek a tolling agreement or file suit within that one year if the insurer thinks that  should be paid there is incentive on the part of the insurer to go ahead and pay that claim not invite a suit that's not necessary and so yes i think the parties can agree to whatever terms they want i think there is the bat statute that acts as a damper on the insurance companies are going to act in a reasonably and i think it's also in their interest not to get sued do you have any sense of what the practice is across the country how many states some states i know get the the claim accrues when the contract is between the when the claims denied in no doubt some of them are very strict about this year though i'm not sure they have the kind of foreign insure statute that kentucky has to do you have any idea what the practice is across the fifty states i don't know the practices across the fifty states i know that numerous kentucky courts have held that the that a contractual statutory period is not told between the the in the in your argument you talk about having requested further information i didn't see the actual letter or whatever the means of communication is that in the record anywhere is it only the lane affidavit that says that you requested it i believe that that correspondence is in the record your honor you don't have a citation for i don't know where we will look if you think and your position is that they never responded to that request for information yes our position is that requests for follow up information requests for follow up information were provided and never responded to any other questions anything else counsel there were others all right thank you start until the coverage was denied counsel is made arguments as to private parties being able to contract and i think if a private parties are on equal bargaining power equal bargaining ground the private parties can statute allows for there to be a shortening of the statute of limitations but in this particular case private parties were not on the same page and i think as to that as the defendant they're the drafter this document they i think that they should be held to a higher standard here than just private parties contracting we were all at the same pay at the same time here obviously ok councils made mention the fact that plaintiffs within that year time period from the law should have filed suit or why would they have known to a filed suit when they didn't even know whether or not that their claim was going to be denied why would they take more time they're already sue the insurance company why would they take more time and go into a court take their own money to file suit if they didn't know whether or not they were going to be denied coverage as far as the e ntering of tolling agree entering a upholding agreement which was also mentioned again there is an assumption that these farmers are going to know hey i'm getting close to this maybe i better secure coun tolling agreement they're not going to know anything about that as far as attorney representation whatever attorney that would have been there during that time period again is of the same position that they are if i was there i'm going to say i don't know if you should file suit right away because i don't know if they're going to deny your coverage as far as we're concerned the leverage is and i think you're on a judgment on mentioned that there is an untenable position that's what my clients have been i if the contract was clear in its terms as to starting date and date that i clients had to sue them and actually written it out for the because the record indicates they gave certain proof kentucky provisions for the law they could have taken just a few more minutes and told these parties what they say certain things should have happened as far as being of a different scheme of insurance a contract is a contract is a contract is either total understanding or this is not in this position we're asking this court to step in that last point are you saying that there wasn't a meeting of minds on the contract i don't think that there was a full meaning of the mines i think this is in favor of the draft or because if there was such then this should have been stated and one last question i'd ask your adversary about the request for further information do you have any disagreement that they did request that information and did your folks respond to it i would do require i do recall that the would have been some information that was requested what i cannot say before the court is whether or not that was comply with them not or whether that had any bearing on whether or not the coverage was denied ok thank you counsel thank you but face will be submitted and the