tomorrow that's automatically covered under an accidental death policy as long as that heart attack is unexpected or unintended but i think it's going to be unintended then i don't know and how do you know what and how do you mean by physician and ask that physician whether or not this person who was in that state in the hospital whether their gas at that point in time was expected or intended although i think it would just be in the expected category and i'm not i'm a continental casually was controlling it's almost identical to this case and it seems to my circuit has already decided this case against you how do you deal with the chattering well i i think i dealt with it in the preview but i'm asking you how do you deal with  of california law that is controlling on that issue it must follow that case and not the ny circuit case but i'd like to address specifically what happened in katrina in that case in the district court not a single california case on the issue was submitted to the district those are beside the point there is a very clear distinction here that the california supreme court established acknowledging that it's in the minority interest that was a distinction between acts in a dream act and the policy you know but you know my view my problem with that but while it doesn't tell me whether this case falls within the accidental death definition it just tells me that they're maintaining the distinction and and i think that the problem with the procedural posture of the case is for the court now by dismissing kate on a motion to dismiss and not receiving any factual information on whether the vessel was expected or unintended it presents the problem of the court here is now facing unexpectedly just lost a big pot not as far as i know i think he had concluded the evening that was the allegation in the complaint he stood up standing up he did not intend to die it's not as if he jumped out of a window or jumped in front of a speeding train and he instantly had a heart attack and died to act i don't know what i don't believe one would need to be made i think on on the record before it clearly that the claim is discovered it was an unexpected or under or unintended death that would be covered under next on death policy occurs that's when the statute runs for the defendants both the agency and the carriers and that way you don't have two competing cases here it takes until the insurer garlands of the reasons for the denial the claim in writing receives the information about the in the private insurance with a contact and the basis for that now at that point the insurer that is on notice under the spray gold case that they have to file a lawsuit with a specified time against both  damaged no limitations period didn't start to run because she wasn't damaged i mean well aren't you trapped in your own problem here no you are the reason why is because that is the problem of the insurance company if it violates the regulations it violated the ninth circuit has on all fours specifically in a on an almost factually now in his case held as a matter of law that in that case and schroeder was not acting as a matter of law on the basis that there was no  making his review and deciding whether or not bornstein were chattering below was the proper precedent for an assertive in furthering california law necessarily have to make a determination as to whether or not while i was controlling the facts and circumstances similar to the case at bar again the contract in court recognizes that a progressive condition or slow deterioration culminating in a tangible harm does not constitute an accident and the court went on to hold as a matter of law that death by stroke in that instance because it's based on an internal and natural bodily process as opposed to an external event or force can not be an accident and i would submit respectfully that this court is bound to federal courts as our point concerned with the consistency to practice before that across the nation's that i was a basis for ok let me ask you about the removal i assume that we share a common ground on the following point and that  the fact that the c s c s again may have a good defense does not necessarily mean that it is a sham to fend the rule your honor is whether or not there is any possibility of recovery against  went to them and said well you told me i have this policy and i'd like to make a claim under it and see if the a allegedly told her on twenty separate occasions no that's there you can make a possible claim at that point you know one hundred ninety eight the specializations has to start running she the other theory is that that c s e a in june of one nine hundred ninety eight by not providing ms evans with these forms somehow potentially prejudiced her prejudiced her claim to receive benefits from mutual of omaha well five hundred thousand dollars the coverage and i don't look at my policy or realize this ten years from now i die my wife goes make a claim and find out that i only have five hundred thousand dollars but she was told i had a million nothing would have happened before i died ten years down the line to let her know that there was a and california huge law can easily hammer you guys in ways that i don't expect i'm not quite sure how to respond to the specific question well but but what i'm driving at is in order for you this is me able to dismiss c s e as a sham defend president tells us that we're supposed to follow our precedent even insofar as it construed state law absent intervening authority i see no intervening authority in the cases the council cited they were discussed into chadron do talk about w california supreme court france or by certification yes as in the case when there was an issue as to what the rule was and they asked the supreme court of the supreme court of california came up with an answer i don't think that work here because we're still bound by our own authority we have think the signs which are clearly established that the statute begins to run against the agent against the insurance company when they claim is denied and the reason why there is a regulation in california as to writing a letter explaining to the insurer why their claim has been denied that they can contact the department shorts the reason for that is so the insured knows she should i fight this or not and since the insurer here never received that letter they should not have that held against the