thank you for here and it's here today i'm a real quickly point out a couple things in the order in the trial court's order that we think are here then i'll back up and try to tell you why cannot under south dakota law provide the medical services the policy requires for benefits coverage a must read again the last part cannot provide the medical services the policy requires for benefits covered that is completely incorrect as far as the policy doesn't require medical coverage for an assisted living center on explain why a mom then that by the way then he goes on on page fourteen and says the policy requires assisted living centers to offer habilitated of care such as assisting with activities of daily living that's completely wrong what the trial court missed the fine point distinction is that long term care policies are not these line to be health care polic they're designed to cover non medical services doesn't mean they can't also cover some non medical sort of some medical services it simply means they're actually outlawed from restricting care or coverage to licensed health care or licensed medical care or skilled care you know your your tax to interpretation is interesting and and the problem i'm having with it is in the in the policy it says otherwise not otherwise required to be licensed under chapter three thousand four hundred and twelve of south dakota statutes and if you look at that section it gives you like twelve different facilities types of facilities it gives you hospitals it gives you i don't remember any military care centers a whole whole list of occurring and so if you read that otherwise required to be licensed it can't be something else it has to be it has to be what's defined as a assisted care center and so that's the problem i'm having ok st of all the languages in the policy if a policy holder is reading mouse they see that supposed to read that and faith are better read the health licensing statutes and the language that says not only one is required if i mean the natural assumption when you read that is to relate up to something that you something in that paragraph that precedes it was words and that cells are a place that provides personal care services so at least you know would you though they might think well maybe they need to be licensed to provide personal care services which is exactly going to get that that's exactly on point but they're not licensed they're registered i mean that's that's the problem having with this but with your argument ok but the asserted i think so what i'm saying is st of all you've got to look at the policy and you don't go just put on licensing statutes from someplace else even if they quoted something that is not favorable to quite as a plain language argument doesn't say go look at the statute well it says not otherwise required to be licensed under chapter three thousand four hundred and twelve of the south dakota statutes well maybe i'm just dumb but if i read the words not otherwise required to be licensed something else so it's not an ambulatory care center it's not a passport all it's not an emergency care unit it's in a says it's required to be licensed as an assisted care center the statue well the statue know th policy and i don't think it says required to be lazing that's how i read it well and you don't think there's other ways that that could reasonably i think may i mean maybe there is but but that's what i'm looking for some reasonable arguments from y to sort of let me beg me let me get back to the i pointed out the two places i think there was there and i mean that those are not accurate statements that the trial court made but l back up when and when long term care insurance was st originated which is relatively recent really in the eighty's st companies st started offering them there was a gimmick that came to the attention of lawmakers congress studied long term care and found that most people are buying long term care insurance because they're concerned about you know we all know  common at some point we may need help we may need somebody to raw just make sure that we don't leave the stove on we might at least need somebody to you know help us watch that were eating make sure there's three meals there help us in and how the shower a lot of things that's not medical care none of those things are medical care and that's the primary reason people buy long term care insurance they don't buy it for health insurance they don't buy it for medical care and but what congress phone in a report in one thousand nine hundred and eighty seven has companies were selling it the mark main marketing point was you might need somebody to help take care of you and then when it came around time to pay a claim a lot of companies would point to oh we said nursing care that's right since care you have to be getting licensed medical care so you don't qualify and what they say that it was a deceptive practice and and it was outlawed for that reason the national association of insurance  commissioners got together put together model act states adopted it including south dakota saying no if you're going to sell long term care you cannot restrict it to licensed health care you can't restrict it to licensed health care providers you can't require that only licensed health care gets paid and in fact there are statutes in south dakota saying that i can cite i'm forty if you need i'm on my my problem is that th ere were multiple coverages here for different different levels of personal care whatever you want to call it not health care and you you your brief asserts that  the truck court misunderstood that the l c does not qualify as a provider of the home benefit because it excludes twenty four hour care facility i think that's wrong the definition of home does include peel t talking about home benefit versus the facility practice and it's mystifying to me that there weren't claims alternative claims filed under both of them but but it seems it also seems to me logical that it's either or it's not both you know in a particular for in a particular claim is one of the other but not the rule we did not say that the reason we played that is because it doesn't apply we don't qualify for it's not even close because we're not a rice and home health care provider and that's what the home and the care benefit requires it requires either a license home health care independent caregiver that's right as a home health care provider but not associated with a ceiling there's i'm reading it as there's two different you're bre there's two different places there's two different places based care includes qualified long term care from home health care provider and independent caregiver or an adult daycare center all of which require licensing are you looking at the definition where we're at is that i mean there's two different places the home health care is discussed it's discussed back in the benefits section and i think that's what you're reading from and then it's and then there's a definition in the definition section talking about home and community care let's see we do not qualify for this i'm going to find it in  we don't or it doesn't but if at page nine of the policy which is i can't tell you the appendix numbers page nine of the policy home health care providers defined its purpose of this policy a home health care provider is licensed therapist registered nurse licensed practical nurse that's the  going to ask you to just really quickly before time expires on assisted living center we had a conversation about that earlier i've got to ask you one question ok under the statute would you agree that t l c is not an assisted living center if we just go to the statu i'm sorry i can't even though that might sound strange if you go to the statute the statute says just a living center provides personal care back statu that statute another statute not the one that they had some and it's it's actually two other you have to read it it's a court nation of two other statutes the assisted living definition you just referred to appears in the definition there's a definition so i can't hear section one dollar definitions but several layers below that there's a definition of health care facilities and it defines that which t case i'm not but i have to answer your question sure so the answer is no you wouldn't could see that at this point i think that the number of chapter know you know a health care facility  avarice has taken the position that insurance statutes can be incorporated into an insurance policy i think it's important to talk st about some of the insurance statutory insurance rules that are wrote relevant here the  st one and all of these come from chapter two thousand six hundred and twenty one dollars of the air s d and it deals with long term care insurance that the health licensing statutes it's the insurance statutes it's clear six are required for a qualified long term care policy elsie's provide care for all six of those it's undisputed that our elsie's residential living centers such as t l c do not do that in order to be covered and again this is an insurance regulation in order to be covered and alle c must be licensed by the state is such a license is required in fact facilities that are to provide assisted living services in the state of south dakota have to be licensed it's explicit in the statute the only facility in the statute that deals with it is the ale see and that's a license facility next an l c to be covered must provide quote twenty four hour a day care and services sufficient to support needs resulting from an inability to perform activities of daily living or from cognitive impairment that directly relates back to the policy language here where the definition of chronically ill is an illness that renders you are unable to perform eighty ells without substantial assistance from another human being mrs ventile dorp has never claimed that she had that level of impairment and one of the examples listed in the policy for the type of care that they're talking about is somebody being physically present to be able to remove food stuck in someone's throat when they're choking mrs is claiming that she satisfies that a t l here because t l c gave her reminders to come to dinner and to lock her walker now helping with the record here i thought c n a ended up saying that she would qualify for this level of care and i'll buy the way t l c doesn't doesn't qualify but here's a list of facilities you could go to that would be assisted living center that is partially correct ok i don't believe that there was ever a determination made at the company finally about whether or not she triggered based on her personal medical condition there is an internal document where somebody concluded that based on an initial benefit eligibility assessment it was performed by a rd party but then there was subsequent information that came in that really didn't come up in the claim process because she was in a an unlicensed one covered facility by c n a view and so the claim because she wanted to stay there that would be awfully strange though to say hey this facility doesn't doesn't that isn't qualified here some other facilities vented at nih coverage of that well there's there's a very practical reason for doing that a lot of times and this is a good example somebody will have moved into a facility and make the claim for coverage the benefit eligibility trigger determination can take longer than the facility eligibility determination and you don't want to have somebody sitting in a facility that you know isn't going to be covered i say while you're trying to work out the benefit triggers so that's why they do it and i think that actually is pretty good evidence of good faith in this case we gave her a list of facilities that would be covered the more expensive facilities but they would be covered and when she moved to such a covered facility she was covered the issue here has always been that t l c does not meet the policy definition of assisted living center and because of that t l c cannot provide the qualified long term care c in the policy the definition of qualified long term care is the definition is the definition of health care plus personal care services it's both there's a hands in the definition there's no war it's ne diagnostic preventative therapeutic curing treating mitigating and rehabilitative services comma and up to that point there's no disagreement that that's all health care and maintenance for personal care services personal care services are the a t l of care that relates back to the chronically ill definition to be chronically ill you either have to be so impaired that you can't perform the a t l or you have to be so severely cognitively impaired that you require continual assistance and that's the term in the policy continual assistance to remain safe and there's never been a claim that mrs van dusen door met either one of those two prongs of chronically ill which is both the benefit trigger in the policy and it all's it's also the predicate for the definition of qualified long term care qualified long term care is a definition i just read to you that is necessary to treat a chronically ill individual that's been certified as such by a health care professional and elsie's are licensed health care agencies and they're licensed to maintain furnish or offer for the hospitalization nursing care or supervised care for the sick or injured it's a health care facility and the definition of an assisted living facility within the statutes is within a health care facility section of the statute assisted living centers undisputed provide extensive health care health care services and it's the nature of the facility that defines the facility section of the coverage analysis now mr average raised a situation where somebody gather could trigger coverage under the benefit triggers because they're radial impaired but you have a facility definition over here and the facility definition says even though you trigger coverage we're only going to pay for skilled care that you get in th that in fact is what medicare does and it is in fact what i'm not aware of any private insurance company that ever been associated with in the last twenty years that did do it this policy certainly doesn't do it if you trigger coverage and you're in a facility that meets the definition of the policy all the services that you receive all the costs that you incur in that facility for qualified long term care our pay and the reason it says that is because the statute south dakota statute and the i r s statute before it which created this tax qualified regimen states that to be a tax qualified policy you can only provide qualified long term care of care which basically maybe in layman's terms would be food shelter and laundry essentially essential and it's registered with the state of south dakota and that's all that institutions that are so registered are authorized to provide correct while the policy requires a facility which is sort of kind of one step up from that provide something beyond food shelter and l recalled was receiving very limited assistance she was for dressing she was a c receiving elf with fastening an article of clothing for bathing she probably comes the closest to it she probably had the most hands  on care for that but even that was limited and it was limited pursuant to directions from the department of health which advise advise our elsie's including t l c that for those eighty elves you can only provide very limited amounts of assistance and for three the a d l and the policy the guidance from the department of health is that you are not permitted to assist in any way with those eighty elves and that's because t l c i mean it's in its name it's an independent living center that there's a progression of long term care and generally people who are who require a more supervised structured environment to help with food because they're not as we aren't as capable of preparing their meals as they used to be so there's meals available there's you know room and board and there's laundry because they no longer can can live purely independently but they are relatively independent and the language in the regulations speaks to that and the forms that she was that the facility filled out for her year after year as a whole series of twenty or more questions are you able to independently do this that submissions but yes fundamentally the policy has benefits triggers and it has a facility has syllabi definitions and the issue here is that the silty definition of assisted living center could not be satisfied by t l c because of the nature of its licensing and the issue of knowledge about the license well what did it qualify as say a home for a facility for the home i think it would i think it then because it's an independent the definition of home health care provider says that a licensed nurse or other licensed professional professional can satisfy the definition but it also says that an unskilled person can provide an essentially unskilled care that's right in definition so t l c would meet that definition of home healthcare provider and it would meet the definition of home both because it's a home it's a resident and because it provides residential care in that specific in a policy that that's what it is on the license issue this is a heavily regulated product it's a tax qualified product it's purchased because it has tax benefits that have never been at issue in this case  and the fact that the licensing statute is referenced in the policy is reflective of the fact that it's alerting the policyholder that a license is required i think it also alerts the policyholder that there's a significant licensing issue because it's talking about health care facilities but if you step back and you don't want to reach that issue the absence of a license is a basis to deny the claim but whether or not that on its own is a basis to deny to claim the only way the t l c could have provided the care that was called for in this policy is if it had that license because without that license it couldn't handle people who are unavailable to take care of radios another provision from the insurance statute requires that alle seize must be authorized to administer medication to patients at the order of a physician that's health care there's a difference between medication assistance your husband or wife are mining you to take your medicine and actual medication administration which is done by a health care professional and are all cs cannot do that and ailsa he must do that under the insurance regulations in order to be covered i want to like a couple things very quickly because i'm running out of time there are a number of issues that the palin has raised on appeal even for the st time in their reply brief that weren't raised below and i just want to recommendation of the magistrate judge there were no objections to the made to judge if i can judge by can enter judgment in continental casualties and l t c g s favor on all counts and that final judgment is a subject of the appellant's appeal i believe the only mention of bad faith and the other tort claims might be in the jurisdictional statement of the opening brief and then finally at the end of it replied read these issues have not been addressed or challenged in any way by the appellant in this case and those judgments i respectfully suggest should be affirmed irrespective of the question of contract interpretation obviously i think we should that judgment should be affirmed a contract interpretation but to the extent that there is an issue of contract interpretation the fact that two federal judges and the state department of insurance have all agreed with continental casualties interpretation of this provision and not with ms then dusseldorf i think fairly demonstrates that at the least continental had a reasonable position and therefore there should not be claims for bad faith or statutory misrepresentation declaratory relief essentially just relates back to the other issues in the case anyway in addition to that  the st two argument headings in the reply brief i believe were the st were raised for the st time on appeal that would be this level of care argument that i've mentioned before where you trigger but will only pay for the skilled care and then there's discussion of tax case that mr ebbers cites begins it's twenty six dollars u s c seven thousand and seventy dollars to be little a little one and it says a qualified long term care insurance contract shall be treated as an accident and health insurance contract in little to it states that amounts paid under such a contract should be treated as reimbursement for expenses actually incurred for medical care l c was an l c is a medical facility health care facility and that's wh was covered by this policy thank you thank you go give you a minute ok the south dakota standards he's talking about in the insurance regulations saying that they must provide services to licensed assisted living facilities those are explicitly minimum standards minimum it's explicitly said throughout the insurance code and the director has no authority to issue anything other than minimum standards in other words the parties can contract for more if the contract allows that number to connel did determine eligibility there was no dispute here she meets every one of the requirements i've outlined in the brief specifically you can't use definitions like severe cognitive impairment or you can't use that term without looking at the definitions it does not require what they are saying it does if you look at the definition it's it's much less than you and i would call severe up next the classified long term care definition what they're doing is they're saying you have to meet all nine categories of care that are covered here in order to correct for any of them that's that would bar a lot of the company i didn't hear  thank you thank you counsel case has been thoroughly briefed and well argued and will take it under advisement