up please the court the issue presented in this appeal is simple should an accidental death insurance policy be interpreted the thirty two law developed under a treaty governing personal injury suits against airlines or instead the district court played legal principles developed under the worse the convention so why doesn't want or worse our convention apply well for a great many reasons as our three points out different purposes different terms to the public policies different rules of construction but most chilling of all is how case law under accidental death insurance policies regards wear socks and in some cases utterly ignores and you can years when the supreme court defined accident in the sex decision not a single case and you can look through all the decisions under the warsaw convention addressing the definition of accident and you'll find not a single citation to any of the many common law definitely cases addressing the definition of action in the context of accidental death insurance policy while my question this corporal of california of accidental death accidental mean distinction when the federal common decision the olson decision there's extensive analysis about accidental means accidental death what the courts are getting out there in a court in a course where even the california courts say about this is that accidental means have to be is is  narrowly defined and it has to be said as accidental means in a policy and we don't have that here why why why don't we why isn't this why why if we had to apply that distinction why couldn't fairly easily be read does as an accidental means provision not an accidental death provision i mean it does talk but it does talk it does have what is really language of causation and it talks about an external event if you will the is the cause of the death that sounds like something very close to an accidental means policy cocaine and so the court said well that's not covered you have to die by some cause other than that in actual death cases you don't get into that so like the olson case is actual death case it was somebody who died by being intoxicated while in a hot tub and all the court found that exclusions applied the threshold issue was was there an accidental death in the court said it was because he never intended to die by getting drunk and sitting in a hot tub so so with that distinction here it really doesn't matter because as as as we pointed out the definition of accident morphs over different facts and circumstances and fundamental in always excellent cases is you have to have two things you have to have something of unintended and unanticipated  an ordinary flight nothing unusual happened the only thing unusual was very much regrettably is that your client apparently sat for a very long period of time through these many hours of flight perhaps without properly liquefy new self and that appears to have led to this to this tragic death but the none of that well i guess let me pose the question what about that is what's external what we don't look at not unless you want to follow the facts when the cases we don't look about what happened in the ordinary usual course of the operation the aircraft if you import that definition into insurance plus standards then you've open you can bet the insurance industry is going to want to go on line of that standard and figure out how to deny policies because of something else in the folks at apple many accounts are going to figure out what do we do now because now we have a standard that doesn't exist in actually an insurance law so so the issue is extra analogy and the issue here is did it come from within or to come from without right and so how did it how was it extend what was it and how was it external according to world health organization which published a warning about for a prolonged period of time but that's him that's not external to him it is external to him if he if he were sitting at if you if he were at home and developed a blood clot we could say that internal but because blood clots and the courts are very broad about this that's why if we look at this interaction insurance law it's a no brainer it's an easy case because the standards for ex mil debt are easy why does air france provide prevail persuasive guidance to us  but with that between the two two different provisions in there there's a link to analysis and then at the end he even have a court saying you know there are lots of different ways we could apply the definition of accident and once we start distinguishing between the cause and the without proper hydration how how is that decision even though you might characterize it the the sitting as extremal how how is that to use the language of the policy unintended how are his own decisions to conduct himself in this way over these long flights how can you characterize that as an intended and an intercepted and that your honor is exactly the core here did he doing a circus act and decide to constrict himself in some way then you have an issue about whether some intentionality about engage in this but any more than you would have with the mountain climber who's climbing mount kilimanjaro and dies because of high altitude sickness and that issue in that case that th circuit address was is that an unintended unanticipated harm that arises in the court said well it's it's not you can quite you know nobody expects to die when you're climbing mount kilimanjaro or mount everest and so you separate that and you look then the next issue is what you seem to be saying that the accident is his death said right is that what you're saying yes well then how is how is that by the language of the policy the accident has to be  external to the body his death is not an accident that is external to the body prolongs going to be completing an awful lot here will it not under an accident insurance law which the district court did not address but if you look happened and we don't know the cause of it could've been a job you could have a judge i don't know if that hypertension because of that but the point is that in that case there was zero evidence of any external cause in the court said well we don't we unanticipated and it was unintended but there's just no basis of external but in this case you get d d t two ways by not doing something and by doing something in this case he was doing something he was riding on a plane for too long the world health organization publishes warnings against that he died by newtonian forces shall we say and lack of hydration but that it critics say arguing that the pressure from the cabin was what we know is that he died of d d t and the coroner says another scientific authorities say that you get d v d when you did what he just did fly for twenty five hours over three or four days the apples or in case in north dakota and both of those cases i will the vatican we submit or wrongly decided because they're decided exclusively under the facts and cases and then they are they are true aberrations under insurance law as i said you know you can you can search all you want in couch and in appleman and you're not going to find a single reference to you know what action is under the sex case and conversely when you look at sex cases including the circuits development effects like you said you just give me two cases where they held under insurance was that a death from d b t was an accident no they ok are you aware of any that it helped that zero under insurance under insurance law good morning mc please the court my name is sherry squeak i'm here on behalf of apple e national union for insurance company of pittsburgh one of the things that i would like to emphasize today is that we are not asking this court to use in that interpretation the way that the standard is that the words are to be construed in a way an ordinary in the ordinary and popular sense in the same manner as a person of average intelligence and average experience that's what we're asking the court to do here now there haven't been as mr cheney thought to mention there haven't been any cases that have applied  the the standard to the b p s injury except for a handful of district court cases which he disagrees with and because of that that is why this court's rodriguez case is helpful rodriguez applied for you since you're asking us to apply how the average intelligence ordinary person would read this policy are you are you to this extent a green with opposing counsel to the type of analysis into how you how you read this insurance policy in the way you're suggesting that should be read because both of both lines of authority deal with contracts interpretation plain and simple and the language that the u s supreme court was addressing in the warsaw convention is very similar to the language in the policy at issue here and what this court did in revisions there are are airline liability they're not how  an insurer should get benefits under a proper policy for a different very different context i agree with that that's a different type of claim but it's not a different type of context what for example ms rodriguez had to show when or authority can we look to we don't need to i mean you could just do a regular contract interpretation and even even under those principles there is nothing external that happened to cause mr williams injury i mean you cou  where the policy fills to use the term means i mean why should we apply that because under arrest of standards we don't incorporate state insurance into the federal common law and the reason  it's special is especially highlighted here it's because as mr cheney felt pointed out under california state law the contract language really doesn't matter if the word means is not in that language and if the word means is not there incorporate this california standard where the word means has to be in there it would ignore a lot of the language that's included in this policy which does focus on cause causation and under arista standards were not to the plans in a manner that would make words in the policy superfluous or meaningless and that's exactly what the california standard would do what with the term x it is widely considered ambiguous i mean or should ambiguity it gives the insurer or under those circumstances then every accidental death and dismemberment policy would be ambiguous and you get benefits every single time and so i don't think just because we could sit here and debate what is the word accident mean under context we have legal principles that help define that term and here we have language that says there has to be a certain causation that's external to accident they are i would say they all should but a lot of them don't which is why we have this body of law but that doesn't mean that that you can't define the term with the other language in the  an accidental well you know i've given not a great deal of thought because his argument is that setting is external and i quite really i don't understand that except the best thing i could come up with is that gravity is a force that is external and you need gravity to sit but you also need gravity to stand i mean i don't think a person of average intelligence and experience would say that i'm being subject to an accident right now by standing here and talking to you which is really what that argument means by saying that sitting is external just because gravity is exerting a force on you it's just contrary to what an average person would say  and in the same goes for external it's it's not external it's something a person does all the the book the pressure of th there any evidence as to what kind of was he sitting in first class was it this is class was it just an ordinary economy class seat i mean there we all know from our own experiences with there are a lot of differences in the consequences of how you feel what it does to you if you're sitting that the a long period of sitting in an airplane seat is having on you that's that's the interaction between the external condition of sitting there what it's doing internally to your body and that is a an external force on the body it not i would disagree with that for the reasons i just explained but even if you were to accept that i still think we went in not because those external forces of sitting in a cramped seat are not i intended it i not an accident he intended to take that flight we were to say that that that's external and i mean you would have to make the same conclusion for a person who chooses to sit in their home watching what i unable to get up and she forced him to sit down because sometimes the stewardesses just decide they don't want anybody walking around even on long fights i was with a different case i think would be a very different case i think that would be that is definitely something external i don't think that would be any cause for dispute on not and it's something that certainly mr y m said and time direct fact be a very different case if that's what causes and try to we have in terms of the facts like was it just sitting alone i'm sitting in an epic cell for a long time there's nothing no other circumstances in this case correct i mean what the coroner's report said was there's an assumption that you know the prolonged setting from his extensive air travel proper lack of hydration and perhaps disease or genetic factors could have taken a play here and it was inconclusive and are there any cases outside of the convention context that deal with d d t on an airplane and as to whether or not it's an accident district court cases yes to the definition policy makes no reference to the warsaw standard for accident right when you think about it and i understand that has a patient but when you think about it this way that you know what ms rodriguez had to show  order to prevail in her case against the airline under the warsaw convention she had to show that an otherwise on eventful flight that her pro on setting was the result of an unintended unexpected accident external to her body and under our policy language that is exactly what the apollo on top to show here that mr williams was subject to an event that was unintended an unanticipated which caused his injury and what he alleges here is just the setting alone did that and this court considered the same exact circumstances albeit under a different law explained why d v d would be internal when you're suing an airline but it would be extra no one you're suing an insurer to me i don't think it's a i don't think it's a big enough this is a distinction without a difference in my mind thank you c about how he was sitting with there's evidence in the record there isn't but it doesn't matter for this case because he did not deny his claim based on how he was sitting in the airplane he just said this was something you quite internally  accord it and was not an accident in the usual operation of the aircraft which is the warsaw standard which shouldn't apply if you don't play that standard you might think we have a different result if the cancel like you won't find an insurance case that uses that language an external event because that the courts don't look at it that way under x no death insurance they say what they what they do is to look at whether the cause of death is external and if you try to explain to me once again of the the there was an unintended unanticipated accident was external to the body focus on that he would get d v d by sitting in the airplane period under accident insurance