moved out to case number four for the day transit versus minnesota life insurance company this is appeal number eighteen dash seventeen twenty three first  good morning your honest name please the court my name is jacqueline herring and i represent the appellant minnesota life insurance company this isn't a risk that accidental death benefits claimed that was decided by the district court under no will revealed under rule fifty two based under the terms of the narrow coverage provided by the wrist the plan in this case mr lantos hung himself in the basement of his home he wrapped a rope around his neck tie the other end to  misconstrued the terms of the plan and relieved plaintiff's burden of proving coverage the plan specifically limits accidental death coverage as defined to death that results from an accidental injury that is unexpected and unforseen the district court however when minnesota life properly acknowledged that this was not a suicide everybody agreed it was auto rockets pixy ation when minnesota life acknowledged that it the definition of accidental the contained in the rider wasn't stipulated to but the fact of how he died was correct that is correct your honor that that is an accidental death it's not a binary concept it doesn't fall into one bin or the other either intentional death or an accidental death and that's been recognized by courts including this one in the context of for example there's a couple distinctions with the auto occur and the same thing happens here but part of the problem with that inquiry is the district judge never made those decisions he completely bypass the issue of coverage on which tran bears the burden to establish that there was an outright you could rule as a matter of law if the case were to be reinvented what type of facts with the parties gathering present to the court a trial i don't think there would necessarily need to be any additional facts again this was a if you waited record that the problem was the district court did not do that fact finding and specifically with respect to the exclusion act the district court mentioned multiple times that you know well reasonable people could disagree reasonable people could disagree well that's not a fact finding if we are in a murder trial and the jury is a hung jury we don't say oh well reasonable people c disagree and therefore we're either going to sentence him or not there has to be that underlying fact finding the facts were available to the district court to make those findings based on the stipulated record the district court agree with that assessment and not only is it an intentional injury but it is clearly a self inflicted injury there's no question here that mr lantos guide by his own hand and the injuries that he was well he was performing all three of all learning to be auto erotic asphyxiation i think if there's one point that i made while i was standing here right now as opposed to anything yet is that what he intended to do simply was i think a lot of what we've gotten into it has to do with the middle gymnastics that the insurance company puts us through by attempting to define accidental as something other than the plain meaning of the term accidental nevertheless despite the fact that they say that the court didn't entertain whether it was an accidental injury the court certainly did do so for the court go through seventy several pages in the decision analyzing under the sant all of the stations that for a he was trying not to leave marks on himself something one would you expect to survive the attack not if they are suicidal or don't care one way or the other whether they survived the pubic shavings in the rubber rings that the examiner found were evidence  accidental or not and it was in the context of an accidental death that came from use of prescription drugs but we have from other circuits a lot of very good persuasive law from the ninth circuit in a second circuit in cases that were almost identical on the  let me ask you to respond to an argument that the syrian regime the briefs which shows how to let's let's assume on this whole first step with regard to the rider that there was the stipulation there was determination made by the court then judge da immediately went to the second part of the analysis the exclusion of the application of cost in those circumstances didn't apply just to the word accident but also applied to make it clear i think a proper reading of the court's decision is that they found that the exclusion did not apply but they did in the dicta explain perhaps reasonable minds could disagree on this in which case if that's what we get riding using council example she said if she came up to somebody and strangled them but they were covered then she's not off the hook but the difference is the lack of consent on the person receiving that let's take an example where someone decides to tattoo very common in our society these days they're undergoing intentionally hundreds if not thousands of deliberate traumas to their bodies for something that they value which may not be valued by others but they're getting the result they want however that's brought up in our initial letter appealing to decision by the insurance company it's brought up in judge dallas decision it's brought up in some of the other cases a couple of the points i'd like to get to i know my time's running short can't really be said that death wasn't intentional under that or injury wasn't intended because it was foreseeable i think that's putting the burden to the other extreme where if you can conceive of a situation where somebody would die you're saying that's foreseeable and thus it's not covered there's a huge difference between auto erotic asphyxiation russian roulette the participant in the station intends gratification they are not trying to put themselves in harm's way the first thing to engage get some other form of gratification or enjoyment and if there's no social utility that's something else that's also brought up in the stamp decision which is why the drunk driving isn't quite a point the drunk driver is doing something with the negative social utility to himsel and others as opposed to the practitioner of autoerotic asphyxiation was simply trying to obtain some sort of personal gratification with no risk to anybody else and an extremely limited risk to him or herself it just becomes of record once something goes wrong will it gets back to where we were the net is the actual what he did the two x i don't know exactly how it works we're what you do cut off oxygen and or something that's a risk but it's one that you can control it's had or this risk to me at least it looks like it's it's serious you're injuring yourself over to do something and russian roulette you know we talk about sports and other things that take a risk and and those are those are prone to actually you can have something with this one to me seems what should normally happen no no lasting effects you're just like headed euphoric the same as somebody who's consuming alcohol it's it's not something we're doing it correctly causes any injury or harm your health in fact maybe taking their a step further i you just say well that's just a process and it's not an injury or something and that it's that's where i'm going to look like it's like you say it's like a self inflicted injury it's not doesn't have to be fatal if i that's what i think the exclusion has controls this case it just the final and that was where i would disagree is that had he accomplished what he wanted he never would have lost consciousness he would have maintained control the whole decision because some of the arguments that were made were i would say the nature of procedural attacking the language used by judge down this decision if you feel if you find under the wealth of other case law that the decision was no one who observed when mr lantos was about to do in his basement would have closed the basement door walked away and said no injuries about to happen here the distinction one of many distinctions with critchlow in critchlow not only was there expert automatically disengage what mr lantos did was the exact opposite if you were to pass out he would have absolutely no way of recovering this was an intentional shutting down of his vital certain drunk driving incidents that are accidental there may be others that are not factual scenarios were different in padfield critchlow anti and the language of the policies was different our particular policy defines an accidental death it defines an accidental death as death that results from an injury that is unexpected and unforseen so even with the application of the subjective objective analysis that analysis has to be applied to the injury not to the death that test is applied to the death when there's no further definition and the court is left to try to figure out what's an accidental death so i un isn't it absolutely and that's why it's not even within coverage and we don't even need to reach the exclusion market to establish coverage plane across to show that death resulted from an injury that w and whether that is or is not an injury i mean that's where i am that's that's my problem i think it's an injury but it's also expected it and it is an expected injury and it's similar to think for me it's similar to the emotional cutters they're cutting themselves not to kill themselves but they're definitely inflicting an injury to release the emotional pain you know this guy is deliberately inflicting an injury to provoke the response release the neurochemical body responses to that trauma the indoor pins and that's where do you foresee it comes from it's absolutely unexpected injury was a self inflicted injury