[00:00:00] Speaker 04: Good morning, Your Honors. [00:00:01] Speaker 04: It's been about 30 years since I appeared in front of Your Honors, and it's a pleasure to be back. [00:00:08] Speaker 04: Last time I was here, I was only a year out of my clerkship, so I have very fond memories of those days. [00:00:14] Speaker 04: May it please the Court, I would take 10 minutes for my opening and save five for rebuttal, unless questioning goes into that. [00:00:23] Speaker 04: So thank you for hearing from us this morning. [00:00:28] Speaker 04: This dispute [00:00:31] Speaker 04: in the claim was about lost settlement. [00:00:36] Speaker 04: It was not about coverage. [00:00:41] Speaker 04: What happens in the motion for summary judgment is, for the first time in its summary judgment motion, Travelers asserts that this was never a covered claim to begin with. [00:00:51] Speaker 04: And the court, I think, confused coverage and lost settlement. [00:00:57] Speaker 04: And the court, this is at the... [00:01:01] Speaker 02: I know this argument was in your briefs, and I guess I have a couple questions about it. [00:01:04] Speaker 02: So one is, I think coverage [00:01:09] Speaker 02: we can interpret the policy, right? [00:01:10] Speaker 02: So if it's a question of law, I'm not sure why it matters to raise it in summary judgment for the first time. [00:01:17] Speaker 02: If it's a question of fact, I understand you have an argument, well, we didn't know you were raising this fact, so we needed our expert to opine. [00:01:24] Speaker 02: But I don't see anywhere where you ask to reopen discovery or strike something their expert said or any kind of actual motion to deal with this problem that you're saying sprung up. [00:01:37] Speaker 04: You're 100% correct, Your Honor, and I will not be arguing any procedural bar argument today. [00:01:43] Speaker 04: So the reason I started with this, I think, fallacy in the court's opinion is because the court necessarily, I think, invented a new rule of coverage, invented a burden of coverage, because it ultimately misunderstood that travelers covered this claim from day one to today and never uncovered it. [00:02:03] Speaker 04: And in order to avoid, I think, [00:02:06] Speaker 04: powerful evidence, which would have supported a jury trial, the court had to invent a new rule. [00:02:14] Speaker 03: Well, the court wasn't inventing a rule. [00:02:17] Speaker 03: The court was applying Rule 56 and the standards that govern summary judgment, wasn't it? [00:02:22] Speaker 03: I mean, I think you didn't claim that they were barred from arguing at summary judgment that there was no coverage obligation. [00:02:28] Speaker 03: And then the court was obligated to apply the standards of Rule 56 in determining whether [00:02:35] Speaker 03: they were entitled to judgment on that issue. [00:02:37] Speaker 03: I think it seems to me the focus should be how the court aired, in your view, in applying Rule 56. [00:02:45] Speaker 03: That was the heart of the issue, right? [00:02:47] Speaker 03: The court, I don't know, it said it was modifying California law, applying a different rule of California law. [00:02:54] Speaker 03: It said, I'm applying Rule 56, and you hadn't produced admissible evidence that would support, create a genuine dispute of material fact. [00:03:03] Speaker 03: Where did the court air in that respect? [00:03:04] Speaker 04: So with respect, Your Honor, I think you're wrong. [00:03:07] Speaker 04: I think the court did invent a rule. [00:03:09] Speaker 04: And I think the reason the court had to invent a rule is because if it were to fairly apply the normal rules and burdens that applied to a summary judgment motion, this wouldn't have been close. [00:03:20] Speaker 04: And the new rule is stated right in the order. [00:03:22] Speaker 04: The rule says causation, meaning coverage, in this case, where there are no witnesses, is beyond the scope of lay witness testimony. [00:03:31] Speaker 04: He said in order to prevail on summary judgment, [00:03:34] Speaker 04: you must have a retained expert who will pine on causation. [00:03:39] Speaker 03: And there are circumstances recognized under federal and California law where particular issues do require expert testimony, correct? [00:03:47] Speaker 04: But not to causation under an insurance policy. [00:03:51] Speaker 04: And the essential thing here is that having been invited to create this rule, it ignored overwhelming evidence that [00:04:00] Speaker 04: I think a jury could rely on to find that this was a covered loss. [00:04:03] Speaker 04: And really, Your Honor, I think you need not go beyond the decision in Kim versus Mapri to see why the court got this wrong. [00:04:12] Speaker 04: I mean, the case is on all fours. [00:04:14] Speaker 02: But it's a district court case that we're not bound by. [00:04:17] Speaker 02: So I think we need to start from scratch on why it isn't a topic that needs expert testimony that something about a roof, I mean, [00:04:29] Speaker 02: I don't know how roofs work, and I think we have to talk about how normal laypeople understand how roofs work. [00:04:34] Speaker 02: So I understand that you argue that the people who were the lay witnesses who were opining about roofs actually knew a lot about roofs, but then that's because maybe they're experts, and they need to be qualified as experts. [00:04:45] Speaker 02: I don't quite understand your argument about why it's such a lay understanding of how wind hurts roofs that everyone should understand this. [00:04:53] Speaker 04: So the reason we cite Kim, and of course Kim is not controlling here, but I do think it's a useful [00:04:58] Speaker 04: opinion to understand the way another district court saw these causation issues. [00:05:03] Speaker 04: For sure, issues of causation under insurance policies can be complex. [00:05:10] Speaker 04: Juries decide them, ultimately. [00:05:11] Speaker 04: This is a jury issue, and they decide them not necessarily entirely relying on paid expert testimony, litigation expert testimony, which is what we have here on Traveller's side. [00:05:22] Speaker 04: We have a paid litigation expert who shows up years later and says, wasn't covered. [00:05:26] Speaker 04: So on the other side of the ledger, why couldn't a jury, for instance, find that travelers investigated this loss, that travelers inspected it close to the time, which is what the Kim versus Mapp record says, and travelers found it was a covered loss and never found otherwise? [00:05:44] Speaker 02: Why? [00:05:45] Speaker 02: So, I mean, and this gets to they paid, they were willing to pay $4,000 or whatever. [00:05:49] Speaker 02: They just weren't willing to pay hundreds of thousand of dollars. [00:05:52] Speaker 02: I mean, sometimes it might be easier [00:05:54] Speaker 02: to just pay a little bit and see if it goes away. [00:05:57] Speaker 02: But you're trying to say because they did that, now they're bound to pay the much larger amount or to stick with that forever. [00:06:04] Speaker 04: No. [00:06:04] Speaker 04: And that would be an estoppel argument. [00:06:06] Speaker 04: What I'm saying is that the circumstances all told, and given the extraordinarily high burden or hurdle they have to clear in summary judgment, the circumstances all told are not close here. [00:06:19] Speaker 04: We have a obviously sudden loss. [00:06:22] Speaker 04: This building is not leaking water. [00:06:23] Speaker 04: There's no evidence this roof is leaking water over many years. [00:06:26] Speaker 02: But you have, as far as I can tell, your only statement that someone had seen the roof and there was no hole in it was a full year before. [00:06:34] Speaker 04: There's a roofer report, correct. [00:06:38] Speaker 04: I mean, they don't have contrary evidence, but yeah, there's a roofer report that says the roof is in good shape. [00:06:42] Speaker 04: There's no evidence. [00:06:43] Speaker 02: Well, it says it's in fair shape, and it will come in. [00:06:46] Speaker 04: Three to five years. [00:06:47] Speaker 04: So, OK. [00:06:48] Speaker 04: They have no evidence of infiltration of water until these storms. [00:06:52] Speaker 04: They have a sudden and widespread infiltration over the entire amount of the building. [00:06:58] Speaker 04: The tenant flees because the building is uninhabitable. [00:07:02] Speaker 04: And to be fair, Your Honor, Traveler's number went up quite a bit in the claim. [00:07:07] Speaker 04: So it started with five, but in the claim, it got to pretty close to 25. [00:07:12] Speaker 04: And in the litigation, they're at 65. [00:07:15] Speaker 04: So this is not a small loss. [00:07:17] Speaker 04: So we have what appears a jury could find. [00:07:20] Speaker 04: Given the inferences and burdens that are associated with summary judgment, I think a jury could find. [00:07:25] Speaker 04: This was a sudden loss, not some sort of long-term infiltration. [00:07:30] Speaker 02: But so, I mean, I don't remember where this is. [00:07:33] Speaker 02: It's in California, right? [00:07:35] Speaker 02: I mean, it doesn't rain all the time, right? [00:07:37] Speaker 02: So you could have nine months of a hole in a roof and no rain, and then it has a big storm and the rain comes in, but that doesn't necessarily mean the hole wasn't there. [00:07:45] Speaker 04: So your honor is engaging in exactly the sort of analysis that a jury should be permitted to engage in. [00:07:51] Speaker 04: And when you hear from Traveler's Council, [00:07:53] Speaker 04: he is going to say all the same things. [00:07:55] Speaker 04: He's going to make a very effective jury argument, because that's what they do in their brief. [00:07:58] Speaker 04: The problem is, we don't get to be in front of a jury. [00:08:01] Speaker 02: But I guess the question is, it's abuse of discretion, right, for the district judge to decide a certain type of testimony needs to be expert versus lay? [00:08:09] Speaker 04: Yes, but of course, your review is de novo. [00:08:13] Speaker 02: Well, sort of, but this is an evidentiary issue, right? [00:08:17] Speaker 02: The district court said you don't have the right type of testimony. [00:08:21] Speaker 04: I don't think so. [00:08:22] Speaker 04: I think the rule that he... There is no California case, no Ninth Circuit case or California case, which says, in the event of a win-loss, you require expert paid retained expert testimony. [00:08:33] Speaker 00: No, but there are California cases that say when causation or other issues are outside the purview of a lay witness, it requires expert testimony. [00:08:43] Speaker 00: a court can, you know, require expert testimony versus merely lay testimony to, you know, bear the burden of proof. [00:08:52] Speaker 04: Never in the insurance coverage context. [00:08:54] Speaker 04: In the personal injury context, yes, but so let me actually... Can I ask, I mean, a variation on this. [00:09:02] Speaker 03: Maybe the case that [00:09:04] Speaker 03: There could be a circumstance where the insurance company comes in with its causation expert and offers expert testimony, and the insured responds with lay testimony to say one person went up on the roof the day before and didn't see any holes in the roof. [00:09:27] Speaker 03: another person went up on the roof the next day afterwards and spotted the holes and they corresponded to the locations of the infiltration. [00:09:36] Speaker 03: I mean, so I could see a circumstance like that in which a lay testimony would be sufficient perhaps to create an issue of fact that is for the jury. [00:09:46] Speaker 03: Isn't it the case here though that we don't really have that. [00:09:49] Speaker 03: What we have is [00:09:51] Speaker 03: kind of ultimate conclusions after the fact by your witnesses. [00:09:55] Speaker 03: They didn't say, I saw it on the day before, and then I saw it this day, and here's the difference that I spotted. [00:10:02] Speaker 03: What they said is, we conclude that it was the windstorm that caused the immediate damage leading to this. [00:10:08] Speaker 03: They were offering the endpoint of the analysis, which is the causation conclusion, as opposed to offering the intermediate layperson facts that might support [00:10:18] Speaker 03: Isn't that the problem here that you faced, is that you were seeking to have these people testify to the direct issue of causation, which may be beyond a lay witness's ability to testify. [00:10:32] Speaker 03: And you weren't instead saying, here are the credible pieces of evidence, of lay evidence, from which causation could be found. [00:10:42] Speaker 04: Let me take through it, Your Honor, because I do think this is not close. [00:10:47] Speaker 04: All the evidence about what this building looked like and what happened in the year before, no evidence that there was any sort of infiltration. [00:10:54] Speaker 03: There's evidence of harm to the roof from the Google street map images that the insurers expert retrieved from prior to the windstorm, isn't there? [00:11:06] Speaker 04: I mean, what we have is we have a year after report by the expert, which is paid for in the litigation. [00:11:14] Speaker 03: Which always happens. [00:11:15] Speaker 04: It always happens. [00:11:17] Speaker 04: And again, we are not arguing that they can't put on a very compelling case at trial. [00:11:22] Speaker 04: What we're saying is, are you going to impose a burden on an insured, every insured now? [00:11:27] Speaker 04: So critically, as relates to this rule that I think the court invented, it's contrary to California law. [00:11:33] Speaker 04: The California law regulation is that it is obligation of the insurance company [00:11:37] Speaker 04: to do a thorough, fair, and objective investigation. [00:11:40] Speaker 04: Every insured who has any kind of loss like this is now under this rule. [00:11:44] Speaker 03: Again, I think you're confusing. [00:11:45] Speaker 03: The district court was applying Rule 56, which is a question of federal law. [00:11:50] Speaker 03: And it was applying how it understood the rules and the burdens that apply under Rule 56. [00:11:56] Speaker 03: We're not really dealing with California law. [00:11:58] Speaker 03: We're dealing with Rule 56. [00:11:59] Speaker 03: And it may be the court aired in that respect. [00:12:01] Speaker 03: But we're talking about Rule 56, aren't we? [00:12:03] Speaker 04: I agree, Your Honor. [00:12:04] Speaker 04: The question is whether the court really took into consideration the Rule of 56 evidence. [00:12:10] Speaker 04: And I believe, and I think the Kim case is on all fours, I really it's not controlling, but it should be a source of comparison. [00:12:18] Speaker 04: How is it possible that in that case, an adjuster goes out and looks at the loss, a handyman looks at the loss, the plaintiff looks at the loss, and then they bring in an expert, actually that point, in that case it was in the claim, and the expert says it's not covered, and the court says, well, it's [00:12:35] Speaker 04: go either way. [00:12:36] Speaker 04: And we're talking about a same sort of technical issue there. [00:12:39] Speaker 04: So here you have a building that has no evidence of infiltration. [00:12:42] Speaker 04: You have a sudden loss. [00:12:43] Speaker 04: You have Traveler's own investigation, which is supposed to be thorough and fair, and which, by the way, in 2022 its manager testifies it was a covered loss. [00:12:52] Speaker 04: He says, yes, it was covered. [00:12:54] Speaker 04: The only dispute in the loss is scope [00:12:57] Speaker 04: and law settlement had nothing to do with coverage. [00:12:59] Speaker 04: They never denied the claim. [00:13:01] Speaker 02: But this is your estoppel argument again, though, that you're not really making an estoppel argument. [00:13:06] Speaker 04: It isn't. [00:13:07] Speaker 04: What I'm arguing is, why can't we trust a jury to consider the facts, the circumstances of the building, the fact that travelers investigated it? [00:13:18] Speaker 04: I'm not asking you to hold for coverage as a matter of law. [00:13:20] Speaker 04: What I'm saying is, why can't a jury consider what they did, what they found, and also [00:13:26] Speaker 04: the testimony of the roofer who says, yeah, this was a win-loss, the testimony of the owner of the building who's a contractor. [00:13:32] Speaker 04: Why do we throw all that out in favor of their paid litigation? [00:13:36] Speaker 03: Let me just beyond the time frame, which I understand you have concerns about the 30 days, which is a reasonable amount of time to be frank. [00:13:45] Speaker 03: It's often more time than you have in responding to a motion for summary judgment. [00:13:50] Speaker 03: But why is it the case that your expert could not have [00:13:56] Speaker 03: provided an explanation in the rebuttal that you provided. [00:14:01] Speaker 03: I mean, instead of a single sentence opining on causation, actually provided what the court said was required, which was an explanation of the methodology by which he drew the expert conclusion that the causation here was the windstorm and not what their expert was saying. [00:14:16] Speaker 04: There is a very simple answer to that and to this whole conundrum that we faced [00:14:22] Speaker 04: at the end of this case, which is that nobody thought about this. [00:14:24] Speaker 04: Nobody from the beginning of this case. [00:14:26] Speaker 03: But no, they put in an expert report, they moved on this ground, and you did respond to it, but you responded with an expert report that included effectively a single sentence that was entirely summary as to the question of causation, which [00:14:43] Speaker 03: the court concluded didn't satisfy the rules, rule 702, in that it did not provide the methodology and basis for the conclusions. [00:14:52] Speaker 03: you know, that why wasn't it possible to provide a more deep, within 30 days, which is a fair amount of time. [00:15:01] Speaker 03: It's tight, but could be done. [00:15:03] Speaker 03: Why was it not possible as soon as you got that report from their expert to have your expert, who you offered as an expert on issues of causation at the outset, to actually go through and explain why he drew the conclusions he was drawing and where their expert was drawing erroneous conclusions, which is [00:15:20] Speaker 03: typically what happens with a rebuttal expert report in the context of a motion for summary judgment? [00:15:27] Speaker 04: Your Honor, I have no excuse, but I have a reason. [00:15:29] Speaker 04: And the reason is that everybody in this case, travelers, the adjusters, the witnesses, all believed this was a covered loss until their motion for summary judgment. [00:15:40] Speaker 04: And so, to be fair, the answer is I have absolutely no excuse. [00:15:46] Speaker 04: It should have been done. [00:15:47] Speaker 04: And I believe we cleared the 702 bar, [00:15:50] Speaker 04: But if we did, we did it by hair. [00:15:52] Speaker 04: And I believe you cannot, in the context of summary judgment, given the burdens, given the inferences, you cannot ignore all of this other evidence. [00:16:01] Speaker 04: And I am not saying it's covered as a matter of law by way of estoppel. [00:16:04] Speaker 04: Let me be very clear. [00:16:05] Speaker 04: What I'm saying is you cannot ignore the condition of the building, the testimony, [00:16:09] Speaker 04: the coverage decision by Travelers. [00:16:11] Speaker 04: You have to trust a jury to make that decision. [00:16:14] Speaker 04: And that's what we're asking. [00:16:15] Speaker 02: Can I ask the lay testimony, which the district court thought really needed to be expert because it was opinion about something that they had not observed happen. [00:16:26] Speaker 02: They hadn't even looked in the whole year before, it seems. [00:16:29] Speaker 02: They just looked after. [00:16:30] Speaker 02: So I know you're going to argue about that. [00:16:31] Speaker 04: Actually, Your Honor, he never mentions the lay testimony. [00:16:33] Speaker 04: He doesn't talk about lay testimony at all. [00:16:34] Speaker 04: He ignored it. [00:16:35] Speaker 04: There's nothing in that order that talks about the condition of the building, [00:16:39] Speaker 04: the adjuster's decisions, the opinions of the late testimony, just doesn't mention it. [00:16:44] Speaker 04: The focus of Kim versus Manfrey is exactly on that issue. [00:16:49] Speaker 04: And that's why we're here, because we think a jury should be able to consider that evidence versus their paid litigation expert and say, make a decision. [00:16:59] Speaker 04: Why don't we trust the jurors? [00:17:04] Speaker 02: I'll still give you a few minutes for rebuttal, but let's move to the other side. [00:17:27] Speaker 01: Good morning, Your Honors. [00:17:28] Speaker 01: Tom Orlando for Defendant Apley. [00:17:31] Speaker 01: Travelers, may it please the court. [00:17:34] Speaker 01: The thrust of RPP's argument appears to be that the district court judge invented a new burden. [00:17:42] Speaker 01: I agree with Judge Pitts that he did not do so. [00:17:44] Speaker 01: He was applying the existing standards of Rule 56 and the evidentiary rules, and we're here to talk about whether or not the district court judge did that. [00:17:55] Speaker 01: Judge Friedland, you asked counsel what is the evidence you have that you think the district court judge should have looked at in your, in RBB's favor. [00:18:06] Speaker 01: So the only way to go through and figure out whether the district court judge properly did this is to go through the evidence. [00:18:12] Speaker 01: So we start with travelers. [00:18:13] Speaker 01: It was our motion and we supported our motion with an expert who gave an opinion that the wind did not cause this damage. [00:18:23] Speaker 01: RBB didn't challenge [00:18:24] Speaker 01: that expert. [00:18:25] Speaker 01: I think RBB concedes that trialers, if this were to go to trial, Mr. Carey can testify. [00:18:31] Speaker 01: So, trialers met that initial burden on the summary judgment motion. [00:18:36] Speaker 01: The district court judge in its order cited Anderson and Liberty lobby at length, the U.S. [00:18:42] Speaker 01: Supreme Court opinion about Rule 56. [00:18:46] Speaker 01: And it talks about what the opposing party needs to do. [00:18:49] Speaker 02: The opposing party must, sorry, can I just jump to the chase? [00:18:51] Speaker 02: So, um, opposing counsel argued that the district court didn't talk about the lay testimony, but I think that's wrong. [00:18:57] Speaker 02: Cause at ER 11, it says neither of these individuals are designated as experts on causation. [00:19:02] Speaker 02: Neither provide any evidence indicating that they would qualify to be so considered in any event. [00:19:06] Speaker 02: Was that just Sue Espante or had you argued that the lay witnesses were not experts or something like that? [00:19:13] Speaker 01: The lay witnesses don't answer the question of what caused this. [00:19:18] Speaker 01: The lay witnesses don't allow for a reasonable inference. [00:19:22] Speaker 01: Frankly, either way, whether it was wind or deterioration that caused this. [00:19:27] Speaker 02: I thought the lay witnesses, I'd have to look back, but my recollection was that the lay witnesses did say, we think this was caused by the windstorm. [00:19:36] Speaker 02: It's just you're saying they can't give that opinion. [00:19:38] Speaker 02: Is that not right? [00:19:39] Speaker 01: Well, they're lay witnesses. [00:19:41] Speaker 01: Well, that's part of the conundrum. [00:19:43] Speaker 01: They're lay witnesses that RBP says they're offering their percipient, if they call, observations. [00:19:49] Speaker 01: What the district court judge correctly held, though, was that they didn't make an observation. [00:19:54] Speaker 01: They gave an opinion. [00:19:55] Speaker 02: Right. [00:19:55] Speaker 02: That's what I'm saying. [00:19:56] Speaker 02: So the opinion, did you, like, in your summary judgment motion say, I know these two guys say that it was caused by the wind, but they have no qualification to give that because they're not qualified as experts? [00:20:07] Speaker 01: Yes. [00:20:07] Speaker 01: Yes. [00:20:08] Speaker 01: That was the whole, that was everything in the motion was about, [00:20:11] Speaker 01: These folks can't testify because they weren't disclosed as opinion witnesses to begin with. [00:20:17] Speaker 01: Mr. Osborne and Mr. Gutierrez were not disclosed, and the district court judge agreed and barred their testimony on the procedural ground. [00:20:24] Speaker 01: And in addition, the testimony wasn't reliable. [00:20:28] Speaker 02: So I'll ask in rebuttal, but I don't understand why, if this somehow was a surprise, they didn't seek an extension or more time to have their expert respondents respond or something. [00:20:39] Speaker 02: That's a real problem. [00:20:41] Speaker 01: And on that point, I believe that the initial expert disclosures were due at the same time. [00:20:48] Speaker 01: And so Mr. Brizze, who was RPB's expert, the disclosure statement from RPB said that Mr. Brizze is going to offer opinions, among many other things, the cause of the loss. [00:21:01] Speaker 01: It just so happens that his initial opinion didn't address cause at all, and yet RPB [00:21:07] Speaker 01: knew that this was an issue because they said in their disclosure that he was going to talk about cause of loss. [00:21:13] Speaker 01: He didn't, and then when our expert did, on rebuttal, then Mr. Brizay purportedly addressed cause, but as Judge Pitts notes, it was one sentence in a report without any explanation. [00:21:27] Speaker 01: I think what the district court judged this discussion about, do you need an expert, and why is this a case where you need an expert? [00:21:35] Speaker 01: The circumstances of the loss here do not allow for a reasonable inference as to what caused the loss. [00:21:41] Speaker 01: There is no dispute that there was a rainstorm on the day in question, and there's no dispute that water got into the building. [00:21:47] Speaker 01: There's no dispute that there was wind associated with the storm. [00:21:50] Speaker 01: But there's also no dispute that there were leaks that were repaired within, or a year before and before that, that there was a condition on the roof. [00:22:00] Speaker 01: We say, Traver says it's a deteriorated condition, they're called burnouts. [00:22:04] Speaker 01: There's an issue about were those burnouts caused by the wind or are they caused by long-term wear and deterioration? [00:22:11] Speaker 01: The photographs of the patchwork that was done in the day of this loss show that the patchwork was being done in the field of the roof, not at the welds, not at the seams. [00:22:22] Speaker 01: There are pictures of the post-loss roof that show areas of burnout. [00:22:28] Speaker 01: So we have evidence of burnout before the loss and after the loss. [00:22:34] Speaker 01: And Judge Freeland, to your point, a layperson, I certainly can't go up on the roof and look at these burnouts and know, did the wind cause the burnout? [00:22:43] Speaker 01: Were they pre-existing? [00:22:44] Speaker 01: Is it deterioration? [00:22:46] Speaker 01: That's what the district court judge said. [00:22:48] Speaker 01: This is not a case where a layperson can draw a reasonable inference one way or the other. [00:22:53] Speaker 01: They need help. [00:22:55] Speaker 01: And again, don't take my word for it. [00:22:57] Speaker 01: RPB is proffering Mr. Osborne and Mr. Gutierrez [00:23:01] Speaker 01: As experts, because they repeatedly say in the brief, these guys are roofers and contractors with many, many years of experience. [00:23:11] Speaker 01: They want to use their expertise to help the jury answer this question about the cause. [00:23:18] Speaker 01: They may be a layperson, but they have opinions. [00:23:21] Speaker 01: They're being proffered for their opinions, not their observations. [00:23:25] Speaker 03: So just so I understand, is that your [00:23:29] Speaker 03: response to the question I was going to ask you, which is why is it not the case, for example, that the fact that Mr. Osborne inspected the roof after the storm, identified new hole tears in the roof covering that were not there prior to the storm, and obviously that it was immediately followed by this inundation of water. [00:23:53] Speaker 03: It is the background circumstances that [00:23:58] Speaker 03: that there's a need to distinguish causation as to prior deterioration versus the storm that makes this case in ways maybe somewhat unique, whereas if, you know, perhaps if we didn't have that factor, the fact that this event occurred and someone went upstairs, went up to the roof and saw all of these holes, that might be enough percipient testimony to create a genuine dispute of fact as to causation? [00:24:25] Speaker 01: Your honor, your recitation of the facts is correct, but for one thing, Mr. Osborne didn't say that the burnouts that he saw after the loss weren't there before. [00:24:35] Speaker 01: I don't think there's any evidence that he was on the roof before. [00:24:38] Speaker 01: So what he said, he went up to the roof afterwards, he looked at these burnouts and he observed the burnouts and he says, it looks like wind damage to me. [00:24:47] Speaker 01: Now that's not admissible. [00:24:50] Speaker 01: On what basis is it wind damage? [00:24:52] Speaker 01: He needs to explain why. [00:24:54] Speaker 01: if he is an experienced contractor that has seen this phenomenon before, has done forensic analysis of roofs, fine. [00:25:02] Speaker 01: We're not saying he could not be qualified. [00:25:05] Speaker 01: Courts do qualify roofers and contractors all the time. [00:25:09] Speaker 03: But I guess would you say, if I were a homeowner and I was on my roof hanging Christmas lights the day beforehand and the roof looked great, then we have this wind and rainstorm and [00:25:20] Speaker 03: My kitchen gets destroyed by a water, a roof collapse, and there's a hole in the roof. [00:25:26] Speaker 03: Would that be sufficient? [00:25:28] Speaker 03: Maybe it would never be disputed, but if it was disputed, would that be sufficient lay witness, you know, percipient witness testimony to create a disputed fact? [00:25:36] Speaker 01: I think it would be admissible because you'd have a baseline. [00:25:39] Speaker 01: I think the issue is a baseline. [00:25:41] Speaker 01: In your hypothetical, [00:25:42] Speaker 01: Basically, you're saying the roof was pristine the day before the loss because I was up there and I observed a pristine roof. [00:25:50] Speaker 01: And now the day after the loss, I go up there and I see a lot of things that didn't exist before. [00:25:55] Speaker 01: That's actually, I think, what happened in Kim V. Mapprey. [00:25:58] Speaker 01: Kim V. Mapprey, I think, is helpful to us because the court there talked about the eyewitness testimony. [00:26:05] Speaker 01: But the issue there was whether or not everybody, they isolated the pipe that burst. [00:26:11] Speaker 01: There were no question about that. [00:26:12] Speaker 01: The issue was, was the water leaking for more than 14 days. [00:26:16] Speaker 01: The coverage turned on that issue. [00:26:19] Speaker 01: The insured left that morning. [00:26:20] Speaker 01: There was absolutely no indication of any water issue whatsoever. [00:26:24] Speaker 01: Return home that night and the house was flooded. [00:26:28] Speaker 01: I think that's analogous to your question, your honor. [00:26:31] Speaker 01: That provided a benchmark and the court there said that's a percipient observation that can come in because it shows a benchmark of what existed before. [00:26:43] Speaker 01: If this pipe had been leaking for more than 14 days, we would expect the water would have shown itself. [00:26:50] Speaker 01: So that can come in. [00:26:52] Speaker 01: And so here, though, we don't have any... There isn't a witness who went up on the roof and made an observation before and after. [00:27:00] Speaker 01: That doesn't exist. [00:27:01] Speaker 01: We have two gentlemen who went up on the roof afterwards and just threw out a conclusory statement that what we're seeing here looks like wind, even though what they are seeing [00:27:12] Speaker 01: is a condition that the record demonstrates existed before the loss and had been repaired in the past in other areas of the roof. [00:27:20] Speaker 02: Do we know anything about the weather? [00:27:22] Speaker 02: So we know that the tenant says there was no water coming down until now. [00:27:26] Speaker 02: Do we know if it rained the week before or two weeks before so that we can say, well, no water came down then? [00:27:32] Speaker 01: I don't know if the record has that level of detail on the previous weather. [00:27:36] Speaker 01: I do know that Mr. Carey, Travelers Expert, did a meteorological assessment as part of his opinion. [00:27:42] Speaker 01: and determined that the wind speeds at the location were only 23 miles per hour and that, so he went through the methodology of the wind could not have caused any damage to the roof to allow the water to come in. [00:27:55] Speaker 01: The water was coming in through a pre-existing condition. [00:28:00] Speaker 01: So the weather was addressed. [00:28:03] Speaker 01: The other thing I would address is finally this issue of, and frankly I don't understand the argument that we're not a stopped [00:28:11] Speaker 01: which is good, but somehow we still have this coverage issue that isn't preserved. [00:28:15] Speaker 01: And I'm rustling with how that plays out, but it's not factually based. [00:28:20] Speaker 01: I mean, the fact of the matter is, and this also distinguishes our case from Kim V. Mapri. [00:28:25] Speaker 01: In Kim, the court said that the insurance adjusters had made a finding, the first two adjusters made a finding that there was coverage because it was sudden and it wasn't more than 14 days. [00:28:37] Speaker 01: Travelers never made a finding here. [00:28:39] Speaker 01: Yes, travelers went and said, the first guy said, there's almost $5,000 of water damage, and I'm going to write a check. [00:28:48] Speaker 01: I'm going to make a payment for that. [00:28:50] Speaker 01: But he didn't say, I find that the storm caused the damage on the roof to let the water come in. [00:28:56] Speaker 01: We don't have that finding. [00:28:58] Speaker 01: And instead, travelers investigated coverage all along. [00:29:03] Speaker 01: Issued the reservation of rights letter the reservation of rights letter. [00:29:06] Speaker 02: Maybe never got to them though. [00:29:07] Speaker 01: I'm very confused about what happened with this letter It's not in the record whether or not it did get to them, but they've never said it didn't that's also not in the record and they have knowledge of the letter because it was used at that position as as as an exhibit and so before the summary judgment motion they had knowledge of the letter the letter is very clear of course and [00:29:30] Speaker 01: that there was a coverage issue, and we were preserving our rights on that, but even without the letter. [00:29:35] Speaker 02: But something happened, like you sent it, it came back, you sent it again, it came back, or like what happened exactly with this letter? [00:29:41] Speaker 01: I don't know if it came back. [00:29:42] Speaker 01: I think it was sent to, it was sent hard, regular mail, because it had a flash drive, and I think it went to the public adjuster's PO box or something, so he would have to go and pick it up. [00:29:53] Speaker 01: It's not clear whether or not he did. [00:29:55] Speaker 02: Oh, I thought there was a return to send or no. [00:29:56] Speaker 01: Yeah, I thought the certified delivery was returned or something. [00:30:00] Speaker 01: It may be, and then I'm misremembering it. [00:30:02] Speaker 01: But then the adjuster followed up with an email to say, I can email you the letter, and I don't think I got a response to that. [00:30:08] Speaker 01: But they've never said, there's no affidavit from the public adjuster. [00:30:12] Speaker 01: He didn't testify that he never got the letter. [00:30:15] Speaker 01: They haven't said they didn't get the letter. [00:30:17] Speaker 01: But putting the letter aside, travelers then wanted to take an examination under oath and did take an examination under oath. [00:30:24] Speaker 01: And the letter requesting the examination under oath said, one of the topics is going to be causation. [00:30:29] Speaker 01: We want to ask you about the cause of loss. [00:30:31] Speaker 01: It always was an issue. [00:30:33] Speaker 03: Can I ask you a question? [00:30:34] Speaker 03: I mean, it seems like the argument that they're making, as I understand it, is that in some ways there is evidentiary value to [00:30:45] Speaker 03: not just the underlying conclusions of the adjusters and the others involved in processing the claim, but evidentiary value in the actual decision to extend initial coverage, for example, that that should be accorded some evidentiary value sufficient to satisfy their burden and summary judgment, and that a jury could conclude from the fact that [00:31:10] Speaker 03: there was an initial decision with a reservation of rights, but nonetheless a decision to provide, you know, $5,000 in coverage, that that has evidentiary value. [00:31:21] Speaker 03: Is there a reason that is not proper evidence of the underlying factual issues? [00:31:28] Speaker 01: Yes, and we addressed that in our brief, and it's a very recent case on this, citing older case law. [00:31:33] Speaker 01: It's the Caribbean case, G-H-A-R-I-B-I-A-N. [00:31:38] Speaker 01: I think it came out [00:31:39] Speaker 01: this year or last year, it's cited in our brief at page 41. [00:31:42] Speaker 01: And that case says insurance, and I think Judge Freeland, you made the point, insurance companies make payments all the time for various reasons. [00:31:50] Speaker 01: The mere fact of a payment cannot be used as an acceptance or an admission of liability or resolve the substantive coverage issue. [00:31:59] Speaker 01: If they've made a finding of coverage, which is what happened in Kim, they actually made the finding of coverage, that's a different thing. [00:32:05] Speaker 01: But to just issue a payment, [00:32:07] Speaker 01: Mr. Mangel, who was the adjuster, he issued the payment without making that finding. [00:32:12] Speaker 01: He accepted the representation of Mr. Osborne and Mr. Gutierrez on the day he was out there. [00:32:17] Speaker 01: He accepted their story. [00:32:19] Speaker 01: that the wind caused the damage. [00:32:20] Speaker 01: And based on that, he issued this check. [00:32:22] Speaker 01: But he didn't make the finding. [00:32:24] Speaker 02: So I've been a little confused about the eerie issues here. [00:32:29] Speaker 02: Judge Pitts is asking about this is just summary judgment. [00:32:31] Speaker 02: This is just rule 56. [00:32:32] Speaker 02: But then you're both citing cases from California about experts and about when a payment counts. [00:32:39] Speaker 02: So are these questions of what evidence is admissible here California law questions or federal law questions? [00:32:46] Speaker 01: Well, the substantive law is obviously California law. [00:32:49] Speaker 01: It's a bad faith action brought under California law. [00:32:52] Speaker 01: But this is a summary judgment case. [00:32:54] Speaker 01: And so the procedural issue about what's appropriate to look at on a summary judgment motion and under the rules of evidence, that's all federal. [00:33:02] Speaker 02: And so why are you citing Caribbean to us? [00:33:04] Speaker 01: Because I think that goes to the substantive issue of what constitutes [00:33:11] Speaker 01: coverage and what an insurance company can do with respect to coverage and how it determines what is covered. [00:33:19] Speaker 02: But the question was what evidence is admissible in federal court under rule 56 as to a fact dispute about coverage and so it seems like maybe we should be talking about federal law. [00:33:30] Speaker 01: Well it's the payment was made and we have not said that's not admissible the payment was made the question is what does that mean it certainly doesn't mean [00:33:41] Speaker 03: Is the argument something like that the reasoning here explains why the evidence is not proper evidence? [00:33:50] Speaker 03: And even if it were considered proper evidence, it would be more prejudicial than probative of the underlying fact if we're applying the actual federal rules of evidence that apply here? [00:34:00] Speaker 01: Well, I would say it's not. [00:34:01] Speaker 01: It's not probative. [00:34:04] Speaker 01: It's certainly prejudicial. [00:34:05] Speaker 01: But it's not probative because of the reservation of rights. [00:34:08] Speaker 01: because the payment was accompanied by a letter. [00:34:11] Speaker 02: Except that they maybe didn't get the letter. [00:34:13] Speaker 02: I mean, this is a little bit tangled. [00:34:15] Speaker 01: But even if the letter doesn't come in or even if they didn't get it, which they haven't argued that, Travers still continued the investigation and asked for an examination under oath about coverage and causation. [00:34:29] Speaker 01: Every step of the way, we were still investigating that. [00:34:32] Speaker 01: In fact, Mr. Carey, counsel keeps calling him a retained litigation expert. [00:34:36] Speaker 01: Well, that's not entirely true. [00:34:38] Speaker 01: He was deputized, if you will. [00:34:40] Speaker 01: He was retained before the suit was fired. [00:34:42] Speaker 01: So he was first retained to be part of the investigation as to coverage. [00:34:47] Speaker 01: It just so happens the suit was filed, and then he was disclosed as a retained expert. [00:34:51] Speaker 02: Have you guys tried to talk to our mediators? [00:35:00] Speaker 01: I think we had a call. [00:35:00] Speaker 04: I think the agreement was it was a turned on legal issue, and it would be of much value, but we're certainly open [00:35:09] Speaker 02: Would there be use of trying to settle this case? [00:35:13] Speaker 01: My recollection now thinking about it was that when we had that call, we were very far apart, and it didn't seem like that that was a possibility. [00:35:22] Speaker 01: And so I haven't talked to my client about that since. [00:35:25] Speaker 00: If I understand on the causation issue that your opposing counsel's argument is that essentially even without expert testimony on causation, they [00:35:36] Speaker 00: There's enough here to create a genuine dispute of material fact. [00:35:41] Speaker 00: And essentially, it was an abuse of discretion for the district court to require expert testimony on causation to survive summary judgment on that issue. [00:35:52] Speaker 00: I mean, I think that's the best distillation I can make of their argument here. [00:35:59] Speaker 00: And so what is your response to that? [00:36:02] Speaker 01: Well, the only evidence they have on that are the statements of [00:36:06] Speaker 01: of Mr. Gutierrez and Mr. Osborne who went up on the roof afterwards and they say it looks like wind damage. [00:36:12] Speaker 01: That's the evidence they have, but that's not admissible without the answer of why. [00:36:19] Speaker 01: Why is it wind and not deterioration? [00:36:22] Speaker 01: They haven't explained their observation and that's why the judge didn't abuse his discretion because that's simply not enough. [00:36:29] Speaker 00: I guess to put a finer point in it. [00:36:32] Speaker 00: You know why I think he's arguing even without expert testimony. [00:36:36] Speaker 00: This is something a jury could find causation based on you know even lay witness observations essentially of the facts and you have your expert but they have their facts and they don't need an expert on causation and there's [00:36:55] Speaker 00: Well, I can certainly imagine easier cases in which maybe a tree falls on a house. [00:37:01] Speaker 00: You don't really need an expert witness to say the tree caused a hole in the house that let in rain. [00:37:09] Speaker 00: I think if I understand the district court was saying, in this case, the causation question is not so obvious, and the jury would require the assistance of experts on causation. [00:37:24] Speaker 00: And then I understand the argument on the other side is that there is no rule of California law to require an insured to have an expert witness on causation. [00:37:38] Speaker 00: And then the California cases, he says, are really limited to personal injury cases, not insurance coverage. [00:37:44] Speaker 00: So I guess to me, that's drilling down as really was an error or an abuse of discretion to require expert [00:37:52] Speaker 01: Witnesses on causation or is this as just as normal summary judgment burning if you remove all of these individuals There are no facts from which the jury can make the inference all we know is that there was a rainstorm with some wind water intrusion And we know that the roof was nearing the end of its useful life That the conditions that that were observed on the roof these burnouts existed before and after and so those facts are [00:38:20] Speaker 01: give us two possible causes. [00:38:23] Speaker 01: How do you get to a reasonable end? [00:38:25] Speaker 01: How does the layperson, how does the jury pick between wind and deterioration? [00:38:30] Speaker 01: They don't dispute that the roof had the burnouts or had deterioration. [00:38:34] Speaker 01: They don't dispute that. [00:38:35] Speaker 01: So there aren't any facts from which the jury can make that. [00:38:39] Speaker 01: That's why they have Mr. Osborne and Mr. Gutierrez out there as, I'm going to not use the word expert, as roofers and contractors with experience. [00:38:50] Speaker 01: They're using their experience as roofers and contractors to help educate the jury about why it's wind and not deterioration. [00:38:58] Speaker 01: But if they're going to do that, then it has to be reliable, and they have to jump through the Rule 702 hoop. [00:39:05] Speaker 00: Would this be a different case if those two had actually been offered and qualified as expert witnesses on causation, and or if the expert witness had actually provided more explanation for their [00:39:17] Speaker 00: causation conclusion, like either of those two could have created a genuine dispute of material effect. [00:39:22] Speaker 01: Yes, and that's what the district court held. [00:39:24] Speaker 01: It needed to be disclosed, and if disclosed, reliable, and there's no way to measure reliability here because they just said, this is what it looks like to me. [00:39:32] Speaker 01: I'm well over my time. [00:39:33] Speaker 01: Yeah, I think we need to cut you off. [00:39:34] Speaker 01: Thank you very much. [00:39:34] Speaker 02: Let's put three minutes on the clock for rebuttal, please. [00:39:38] Speaker 04: Thank you. [00:39:38] Speaker 04: And I will be brief. [00:39:41] Speaker 03: Can I interrupt you just with one question? [00:39:43] Speaker 04: Your Honor, it would be beyond me to say no. [00:39:48] Speaker 03: Even if there was a genuine dispute of material fact that precluded summary judgment as to the issue of whether benefits were due, why isn't in some ways the arguments we're having as to whether there was any entitlement to coverage whatsoever sufficient and certainly the test of the evidence they've now provided by their experts for supporting their claim that there was no [00:40:14] Speaker 03: coverage obligation, why didn't they at the very least have a reasonable basis for withholding benefits such that the claim that's before us, which is a claim for breach of the Covenant of Good Faith and Fair Dealing, fails whether or not you might have pursued a contract claim for coverage? [00:40:33] Speaker 04: Because they didn't do the investigation in the claim. [00:40:36] Speaker 04: Because the essence of bad faith in California is a failure to investigate. [00:40:40] Speaker 04: They covered this claim and Mr. [00:40:43] Speaker 03: So where is that? [00:40:46] Speaker 03: They went out immediately. [00:40:48] Speaker 03: They started requesting the opportunity to have someone come and review. [00:40:53] Speaker 03: There was a period of time, a delay between their request to have the roof inspected and the actual opportunity to inspect it. [00:40:59] Speaker 03: Obviously there had been changes performed and remediation performed in that time period. [00:41:06] Speaker 03: How is it that the theory is even if they could have justified their withholding of benefits that somehow they nonetheless did so on an improper reason? [00:41:17] Speaker 04: They told my client at the first interview that if he asked for a dollar more than the $5,000 they paid him, they were going to accuse him of fraud. [00:41:25] Speaker 04: They found in the claim that this was a $25,000 and then a $30,000 and then in the litigation a $60,000 claim, they never paid another dollar. [00:41:33] Speaker 04: They never paid a dollar in business interruption. [00:41:36] Speaker 04: This is a classic bad faith case, failure to investigate and failure to pay policy benefits. [00:41:41] Speaker 03: Council told your honor. [00:41:42] Speaker 03: So, and that, that, so that would have, so just so I understand, that would apply even if they, they did have a reasonable basis for denying coverage. [00:41:51] Speaker 04: But they never denied coverage, your honor. [00:41:53] Speaker 04: And this is the critical thing that the court got wrong. [00:41:56] Speaker 04: They never denied coverage. [00:41:57] Speaker 03: Right. [00:41:57] Speaker 03: They, they extended coverage while reserving their rights. [00:42:00] Speaker 04: Your honor, in 2022, at a deposition, Travelers Unit Manager, [00:42:05] Speaker 04: answered the question this way, is the railroad business park claim covered under the travelers policy? [00:42:10] Speaker 04: Answer, yes. [00:42:12] Speaker 04: It was a covered claim. [00:42:13] Speaker 04: No one for one second thought this was not a covered claim. [00:42:17] Speaker 04: The reservation of rights that they issued had to do with cooperation of my client because he didn't want to give a recorded statement. [00:42:22] Speaker 04: It had nothing to do with this issue of wind damage. [00:42:25] Speaker 04: It just isn't in there. [00:42:27] Speaker 04: If you read that reservation of rights, if they really wanted to talk about what happened in that roof, they would have said so. [00:42:32] Speaker 04: They quote the policy language, and then they quote the rest of the policy as well. [00:42:35] Speaker 04: So let me go to the heart of the matter. [00:42:37] Speaker 04: And I think that, Your Honor Judge Pitts, you put your finger on it. [00:42:42] Speaker 04: If we are going to make insureds hire experts the moment they have a loss, because years later a carrier can hire a vendor, a consultant, who they pay handsomely to say this was never a covered loss. [00:42:59] Speaker 04: We are going to dramatically shift the burdens in California to insureds. [00:43:03] Speaker 04: These are all risk policies. [00:43:05] Speaker 04: All an insured has to do is say, the damage is here, come look at it. [00:43:09] Speaker 04: And the insured is required to, and always does, trust the carrier to do a full, thorough, and fair investigation. [00:43:21] Speaker 03: Your client brought this lawsuit. [00:43:23] Speaker 03: In the context of a lawsuit, they offered retained expert testimony. [00:43:29] Speaker 03: that as you acknowledge, you sort of offered a summary response to that without providing a fulsome analysis of the basis for your expert's preferred opinion. [00:43:40] Speaker 03: So, again, we're not talking about [00:43:44] Speaker 03: a sort of general rule of California law about the burden on the insured. [00:43:48] Speaker 03: We're talking about the obligations of a party who chose to pursue litigation in federal court and is subject to the federal rules, including Rule 56 and the burden-shifting standard that applies. [00:44:00] Speaker 04: I don't think so, Your Honor. [00:44:02] Speaker 04: I think the question that you asked counsel, which never really answered, was why can't a jury rely on an insurance company's investigation? [00:44:12] Speaker 04: Why can't a jury, in addition to, I think, the facts relating to the loss, I mean, why doesn't the tenant flee for the year earlier if there's all this water coming in? [00:44:23] Speaker 03: I mean, I think this theory is sort of, I can see the argument that allowing the mere fact that coverage has been provisionally provided subject to a reservation of rights, we can talk about that. [00:44:37] Speaker 03: that that is in some tension with the policy of precluding settlement offers and then efforts to settle from being subject to becoming evidence. [00:44:47] Speaker 03: It's also generally, it's of limited probative value. [00:44:52] Speaker 03: It actually incentivized insurance companies not to do so, to hold their cards and hold their coverage as long as possible so that they don't end up in a situation where they [00:45:01] Speaker 03: The insured is saying, well, you know, you gave me that $5,000 at the start to help me fix the immediate problems, and now that's evidence that you're on the hook for $600,000 in coverage. [00:45:10] Speaker 03: I mean, that would be, you know, that there are some pretty negative disincentives if that can be come in as evidence of their underlying obligations under the policy. [00:45:19] Speaker 04: Except all of that is contrary to the contract that they entered into. [00:45:23] Speaker 04: The contract they entered into says all risk. [00:45:26] Speaker 04: That means the obligation is 100% on them to demonstrate [00:45:30] Speaker 04: in the claim. [00:45:31] Speaker 03: Right. [00:45:31] Speaker 03: But we're talking about the federal rules of evidence and the probative value under the federal rules of evidence of this kind of conduct. [00:45:39] Speaker 04: So the question I'm asking is, can a jury, with all the inferences our way and all the burdens, all the credibility findings our way, can a jury look at what occurred here, which is that the carrier came out and said, you're covered. [00:45:52] Speaker 04: And then the minute they raised the issue of maybe we want a little more money, they said, we're going to hold our fire on that. [00:46:00] Speaker 04: It seems to me that an insured, a customer, a layperson, a consumer can rely and should be able to rely on what they're doing just as a jury should. [00:46:13] Speaker 03: And we're not talking about just a little more money, right? [00:46:15] Speaker 03: I mean, that ultimately what started as a $5,000 [00:46:19] Speaker 04: offer that I think it was up the estimate that was provided by the insured was ultimately upward of six hundred thousand dollars in can can coverage possibly turn on the law settlement dispute it can't if if what you're saying if we lose this case I will have to advise my clients to come in the door for me at a claim every single time I have to say hire an expert right now the minute you have a claim higher consultant because this carrier [00:46:46] Speaker 04: Five years from now, when they decide they're going to underpay your claim, or accuse you of fraud, or engage in acts of malice, this is going to turn on coverage. [00:46:56] Speaker 04: And so you have no choice. [00:46:58] Speaker 04: It is now your burden, which is 100% contrary to the policy and California law. [00:47:01] Speaker 02: I really think that there was an opportunity to hire the expert or expand the expert or seek more time when the summary judgment motion was filed. [00:47:08] Speaker 02: And that a lot of cases wouldn't be like this with the Christmas tree falling and the Christmas lights on the roof. [00:47:13] Speaker 02: I mean, there are a lot of other cases where you wouldn't need an expert. [00:47:16] Speaker 02: But once it was clear you did, you just didn't ask for one or more time. [00:47:20] Speaker 02: I mean, there's a real procedural lapse that happened. [00:47:24] Speaker 04: Understood, Your Honor. [00:47:26] Speaker 04: I think we're over time. [00:47:29] Speaker 02: Thank you for your time. [00:47:30] Speaker 02: Thank you both sides for the helpful arguments. [00:47:31] Speaker 02: This case is submitted.