forty two days later that i was killed and lois was catastrophic we injured when they were hit head on by a drunk driver on a one lane bridge in a construction zone tami county iowa lois lost her husband she lost a leg and she suffered a broken neck or past medical expenses totaled nearly d one hundred thousand dollars and her future medical expenses have been estimated to exceed over a one million dollars lowest paid meridian money for a policy of cards for those that provided an under insured motorist indorsement that allowed for up to five hundred thousand dollars and coverage for the exact situation that she finds herself in now rhydian promise to pay the us under insured motorists benefits in the event schmidt cell can pass coverage for under insured motorists benefits under her policy of insurance the district court erred in granting meridians request for declaratory judgment and finding the insurance policy at issue here an m b of sleek secluded under insured motorists coverage the district court also erred in this case by failing to follow the well established iowa law that insurance policies are to be read in the light most favorable to the insured and to be construed strictly against the insurer this court should reverse the court below and hope that the exclusion  the exclusion must be clear and explicit in its meaning the exclusion here is not clear and explicit in its meaning because it can be interpreted to have two separate meanings it's therefore by definition and big u s moreover insurance policies are to be construed strictly against the insurer and red light most favorable to the insured when done so in this case it's clear that lois has a claim for under insured motorists benefits should not be barred coverage exists in this case because the only but not insured exclusion that meridian relies upon in support of excluding coverage isn't bigamous it's in big u because when the definition of the word use forth in the policy is placed within the exclusion it can be interpreted to either provide coverage or to deny the district and her spouse and quote the court went further and stated as in jensen vs jefferson county mutual insurance company the word you is defined as the insured and her spouse include the insured and her spouse not the insurer or her spouse the magistrate judge opined that because the definition included separate numbered paragraphs it was really two separate definitions not one definition and therefore each separate definition should be inserted separately rather than together when considering the exclusion and when does so it makes it unambiguous this is tortured logic it's tortured logic because st of all there is only one definition of the word you in the policy the words used by meridian in their definition to connect the two numbered sentences was the word and not over it's strange logic to believe that somehow the word n gets changed to mean the word or simply by numbering cen secondly and more importantly the word and that meridian chose to use is a conjunctive term it joins two words or phrases this makes it clear that is one single definition not separate definitions converse leave the word or is disjunctive it separates two words or phrases meridian by using the word and instead of or and by numbering the paragraphs created this ambiguity rhydian could have been clear and explicit in its definition by simply using the disjunctive word or had they done so we wouldn't be here today despite the definition having separate number paragraphs the lower court in its memorandum opinion specifically acknowledged that there was an ambiguity in the definition when it stated quote it could be argued that the owned but not insured exclusion at issue  here applies only to vehicles owned by both the named insured and her spouse and quote ambiguous ambiguous policy provisions are to be interpreted against the insurer of the party that chose the language if it were can be interpreted to have two meanings than the one favoring insured under iowa law must be adopted like the definition of the word you  say you can find exceptions to that is that the definition because it has to be applied policy why and it strikes me that there may be in various provisions and exclusions and and  perhaps should be construed differently and different provisions no one in fact your honor i would i would argue that they would not be construed differently in different separate definitions for example in this particular instance the medical payments coverage portion of this process policy applies the same definition of the word you in the definition the word you as an as it applies in the under insured quirk got it wrong they got it wrong because the term that's used by meridian and it is a conjunctive term it is not disjunctive and therefore the definitions have to be read as one sentence not two and when read  one it would require that donald saw d and lo schmidt stock and owned the car that they were in at the same time in order to exclude coverage and that's simply not the case here in fact the met street judge even in her memorandum opinion said that this is a close issue well in fact if it's a close issue that is exactly why i lost says that the term must be viewed in the light most favorable to the insurer and  and against strictly construed against the insurer that's when that's done in this case obviously d since los and donald did not own the car  jointly that she was in which she suffered her injuries the exclusion that issue would not our coverage oh so i what i what i heard in response to john's locums question and your subsequent explanation that went right back to t l argument is that when hacker interpreted identical language it's not really distinguishable is just wrongly decided because you didn't really distinguish the the facts of the case  matter at that point we're just routing what what is an ambiguous what does it say and in just your position is hackers just wrongly decided right i don't believe the arguments that are being made in this case with respect to the actual d usage of the word and versus the word of or i don't know whether that was raised in the the hacker case we're not it's clear in this case that even the magistrate judge believed that this was a close issue and also found that under the jensen case which is controlling the definition here as again jensen that meridian is basically arguing that the word and means or wind that is not clear and explicit it wasn't written that way that your arse this is your chance to clear up the confusion this is your chance to give maria murray and a road map for the future would fix the problem other litigants would not have to come in and argue about what this policy provision actually means i think really what hacker stan for is that average consumers like lois are confused about the lead policy language that was chosen by the insurance company because they did use a conjunctive term instead of a destructive one and so what hacker really stands for is that this policy language is not clear and explicit in its meaning in effect it's being litigated all over the states this is your chance to clear up that every beauty and we would ask that this court reversed say you're saying this is your think this issue liability clause but the debt as your honor pointed out the language is exactly the same in terms of the definition that's used it's just applied in a separate portion of the policy but you said on of the place i did i didn't see either way or cite we would ask that the court reverse the memorandum opinion and order granting meridians request for declaratory relief and remand this case with instructions that judgment be entered in favor of laws schmidt stuck and finding coverage thank you company that does logan you offer earlier this year it had a pamphlet that i that i appreciated that insurance policies should be read and understood according to the natural and obvious import of the language without resorting to and force construction for purposes of either limiting or extending their operation that was language from a south dakota case but it's of the same thing that i was safe to say and it seems to me that what says is that in reading insurance policies which are by their very nature long and complicated documents we should take care to not make them more complicated than they are is not a big disagreement about language is not ambiguous insurance policy should be read in their totality they must be read in the context they arose and they must be read according to the intent of the parties at the time of their execution with that in mind there can be no doubt that when miss schmidt purchased the proud of the policy for meridian issue she had no expectation that it would provide coverage for damages arising out of an accident that did not involve her insured vehicle cases that say so many things sure there is that link you think that's wrong but what i think but i don't think it's the only thing that's the only principle that applies in response to that particular if you did i would respectfully direct you to an th circuit case potential duplicate of coverage that case from this court specifically spoke to that very issue of leave its head not five when you go to look at it and it's a great case that provides a good overview of i was case law on but not a potential duplicate and that that can be avoided and i think that question has not yet been answered the reality of of what's going on here with all due respect to my proposal counsel is that she's making claims for millions of dollars going to other different i mean the idea that she may not be adequately compensated is far from an answer at this point here or there are pending claims against the grand job against the road construction company against the lighting would say your hypothetical judge just the old not insured exclusion would apply that but if i might add this mr byerly spent a great deal of time talking about the word ape what woodward d and in the in the in the language talking about what you can refer to is not the only thing you need to focus on the word is tremendously important in that nd stanza of that language because it modifies the word and it's not just  alternatives an either or situation the word view can refer to either the named insured alone or to the named insured and their spouse if they live together so it's not simply a matter of single they should have put or in between those two the totality of the language if you look at it and this is exactly what the hacker they sent read the language it is clearly and unambiguously designed to set up exactly what it does and that is alternatives it could either be the named insured you could either be the named insured or it could be the named insured and their spouse if they're residents of the same household so i thought that answers your question what one point that i think is important to make it again i don't mean to guava over the fact that mr schmidt suffered a loss clearly she did but one of the things that i think is important to acknowledge and it's in the record before you is that  sampson before he passed they made a conscious decision to keep their insurance separate that that wasn't an accident they ate they consciously decided to keep what was your what's your what's your supporting evidence for i took an examination under oath of miss schmidt relatively shortly after the accident before this deplore every judgment had been filed and that specific concept was discussed and she made it clear and i'm sure  your reference the record herself but i don't think i'm stretching it to say that she made it clear that she and donald made a conscious decision to keep their insurance separate and there's i believe good language in the in the i would cases and i believe  that made that decision and that and that lives with the consequences or or deals with the consequences of the level of under insured coverage that they chose to have  about the issue of the word you in the issue of the word and it's interesting that we're talking about twenty three letter words that are fairly common i think if you look at the jones case and really or the name injured and their spouse if they live together and the fact is that in general the language was different of course it was talking about generally speaking the same thing but it wasn't the same language and it was markedly different  st of all it had the two numbers stand those have to mean something we can't read policies in a way that just ignores those and i think that's part of what judge mahoney correctly pointed out but frankly in her ruling the nd thing as  do with the fact that that the jones case does say that you when you are mean this in the language in this case as you and your refer to i'm not here to get into a of esoteric dispute about whether or not that means that the definition but it is different there is a difference in that language between what's in this policy and what was in the jones policy and again i think it's further support for the fact that when you read this policy objective when you read it according to the intent of the parties when they entered into it it's clear that the word you can refer to one of two things and that's just with another of what judge mahoney determined the word i think it also bears mentioning and i brought this up in the briefing the use of the word any in the exclusionary language here i think is important for example i want case law that demonstrates that the use of the word any connotes a clear indication of a broad application of exclusionary land and in this particular language in the only but not insured excludes the word any is used to describe who the exclusion applies to any insure and what the exclusion applies to any vehicle owned by you which is not insured under this policy again that repeated use of the word is additional support and additional demonstration for the propriety of what judge mahoney ruled in this situation evident by the history in this case and i think judge logan this goes a little bit to a comment you made earlier it's really not an exaggeration to say that in the hands of the people what tourney just about anyone who would arguably  to mean or any phrase if the standard is can a lawyer motivated by a desire to represent their plight so they come up with a way to say that language is less than clear if that's the standard then then it's going to be difficult to conceptualize a situation where insurance policies wouldn't be and i think an example of that is that in this case if the underlying received opposing counsel goes in word you cannot be read as including done well one judge mahoney pointed out the simpson case they did a complete one hundred and eighty dollars and they argued that no now you have to read the words you to include mr self and and miss and i bring that up only as an example of the reality that lawyers disagreeing about policy language does not stand the standard is whether or not read in the  policy in objective we speaking the language is reasonably susceptible to more than one meaning and that's why i think that he went for the different case from ohio which of course isn't controlling in this court anymore than it was controlling on judge mahoney but it  s to exactly the same policy language and i think if you read it carefully get speech to exactly the same are exactly the same argument that's being made here if you read the last two or three paragraphs  court addressed specifically the argument about the use of the word and in that policy and it said no when you read the policy language with two separately numbered stances and the word yes in the nd part it is clear that it was setting up an either or situation you could refer either to the name insured alone or as it did in the situation to the name the juror and their residence residence about so for all those reasons and the others are detailed in our brief is respectfully submitted to judge mahoney's opinion should be appealed thank you thank you tell very briefly your honor i do agree with mr walking on one thing insurance policy should be read in their clear and explicit terms and that's really the problem and that's why we're here today the policy definition is not clear and explicit rhydian could have made it clear and explicit if they'd simply used the proper word or instead of any i think judge look at your point also d is correct this case is different than the hacker case in that this case does involve d under insured motorist benefit act or did not act or involved the liability portion of the policy and that's important and d it's important because under iowa law under insured motorist benefits flow with the person they travel with the person they don't travel with the automobile to show the the under reasonable notice of this particular policy mr walker is correct  that throughout the policy where it's defined as you or you or the named insurance shown in the declarations in the spouse if the rest of the same household if louis schmitt selke and donald stopped and had decided to not be residents of the same household after becoming married d there would be no exclusion of under insured motorist benefits despite lois being injured in her husband's car because they were residents of the same household that's that's a perverse result