case that was dismissed on summary judgment by the district court the material question or the material facts that we believe are in dispute are the definition of any one period of expense as well as whether or not an insurance company can create a situation where they then utilize that situation to decline benefits to or refuse benefits to an applicant if you look at the policy itself the policy itself does not in anywhere discuss the denials that were used by the insurance company bankers for example the limitation on benefits the says nothing about additional causes the insurance policy is replete with definitions it never defines cause the average an ordinary person will define the same cause or causes as the triggering event to give them the benefit mis the daughters like any good daughters decided when their mother was in her seventy's that they're going to go out and buy an insurance policy to try to make sure that they have something for their mother in their elder years you have an insurance company who caters to the elderly says we're here for you for the life of your retirement these the daughter leslie cast off speaks to an insurance agent the day that she purchases the loose if i can understand how in your view the policy should work in my view the policy says the same cause or causes so i would say that if someone for example like miss castle hurts or near shoulder that let's just go through her scenario here so first she had the policy for a number of years and she h correct and she planned for benefits or it gave her benefit that's correct ok somewhere along the line and i'm exact dates really probably immaterial here but she heard her shoulder she fell and injured her shoulder and she applied for benefits for her shoulder as well right now is that at the same time she was receiving benefits for her knee my understanding is that it was approximately two weeks after she had completed receiving some benefits for her and they said no correct and there was a little dispute litigation ensued in they resolved it and she got benefits for her shoulder correct utilizing a reasonable implementation of that definition ok well let's do that purely that was a result of the litigation there was a settlement yes right ok we were long and she's injures her knee unfortunately but there are a trip and fall correct right while she's receiving benefits for her shoulder that is correct ok but she didn't apply for benefits for her knee new a new knee injury at that time that's correct ok benefits for the shoulder and and she applies for benefits for the knee that's correct ok and they say no that's correct why why was it not the policy provided because the policy provided that if the understanding in the normal person a reasonable understanding of it is if she needed to get additional benefits for her shoulder she would have to wait six months and be have no benefits for six months on her shoulder to then reapply for her shoulder because the definition says for the same cause or causes so what happens is if you look at the actual definition see your own i guess if you read it it's as anyone period expense begins or when the insured first incurs expens covered under the policy right right it ends when for six consecutive months the insured is no longer receiving long term care services for the same cause or causes for which for a new injury if there were i understand what the court is saying but what i can say is this the average person the ordinary reasonable person has for example like myself a car policy and if i have an accident on street a and then i have an accident on street b even if my insurance policy is covering my accident on street day it isn't going to deny me as long as i've been paying my premiums coverage on b it's going to be a separate incident and if the insurance if the policy heads if to me if that were the intent and if my client understood that at the time of purchase because she also had conversations with the salesperson that explained it to her to make her understand that this would be a covered event if the ordinary person doesn't think that they're going to have any unrelated for example you know you fall and break your knee and then two weeks later you happen to have a stroke but you may not need benefits for that stroke for two years banker's is going to say you had that stroke while we were giving you benefits for your knees so therefore your stroke is not covered to me it's immaterial it's at best an ambiguity because to be frank my client didn't think there was it was ambiguous at all her understanding and i think a reasonable understanding was it's for the same cause or causes so no she couldn't get any benefits for her knee her initial knee incident until she went six months and then no she couldn't get anything for her she you know her shoulder unless she was home care shoulder free for six months but for unrelated related causes and these are admitted three distinct and separate events that it would be covered and like i said if you look at the policy it has exclusions acts of war intentional self inflicted khans in injuries services provided by a member of the immediate family due to mental illness due to supply of some sort of doesn't exclude it doesn't it doesn't exclude it there are no benefit limitations on it this is a policy written in two thousand and one and you know you are what's interesting to me is counsel after the documents were submitted there was a new case that was actually a district court case which actually kind of a kind of baffled me that the district court that defendant would want this court to look at a district court case that number one is up on appeal but number two this court tells that court what to do so i wouldn't necessarily think that it's something that this court should consider except looking at the case i do have certain things to say for example my client's policy was in two thousand and one this policy wasn't two thousand and eight my client's policy terminations would be her mortality this policy in two thousand and eight is now there is a lifetime benefit of probably twice the amount so and we're not talking some exorbitant amount we're talking let's say it started i believe it's seventy thousand now would be eighty thousand per event so if you look at for example a car policy whatever you paper money if you have several instances you file several claims they're separate and distinct and if someone has a reasonable understanding that that separate and distinct is applied here which is what was the case here not later but at the time so in your in your view there's there should not be a policy should not be interpreted to impose a six month waiting period for unrelated injuries from the original cause for unrelated because that's how it was marketed that's how it was sold and that was the what was the understanding of my client at the time of purchase well so we have to look at that with the district court did was just look at the text of the policy and ask is this in big us said no it's not in big us means just what well that's a technical person no i understand that that's what the course said but i also think the court didn't even understand the far reaching effects of that decision because for example bankers can look at my client's mental excuse me physical state or could be mental state and say for example she has difficulty putting on her bra so therefore she can never ever ever get another policy benefit and i actually depose the vice president of bankers and i said heard let me make sure i'm clear here are you saying and i'm paraphrasing that you have a person here who you're taking their their monthly premium from them every single month and you know sitting here right now that you will never ever ever give them a benefit again and the response was she can cancel so the my father did just the court you know went on to say your interpretation would you create well what i was concerned about your honor is an insurance company that's marketing this policy to the elderly i'm speaking for people who are old and can't speak for themselves i'm here because i have an elderly lady who can't afford to be here i'm here because in banker's wrote the policy they set the premium i didn't tell them to say that and i most certainly think that if there were an additional cause for example in her denial letter it said no this is not the same cost but it's an additional cause if these definitions were so important to the insurance company then most certainly cause unrelated the fact that something that was unrelated to this new initial event could be an exclusion if all should have been spelled out for the person who's trying to get benefits so that when they reach their elder years they have an opportunity to stay in their home to be able to function this is their policy it's not my policy if i wanted to exclude any unrelated event and knew that it was in a denial in perpetuity and i would give them one benefit only i would have spelled it out and i think that it's something that a jury i think it's something that should be heard by the court and let a trier of fact aside because while it might seem you know let's say unambiguous on its face of the court looks at that i also believe that the the that the affirmations that were made during the torch account and by the way i would like the court to look at for example there is a banker's versus roe case and that is in that case what bankers did was bankers said to the court i would like to have the insurance sales person come up and testify that i didn't you know we didn't mean for this to be a long term care policy so bankers wanted in that case the sales person to be able to testify in this case bankers is saying whatever the salesperson said doesn't mean anything that this agent has nothing to do with bankers and so on its face it's clear it's not clear to the average person if you understand it one way and you say well let me make sure i understand and the person sales person says yes this should be cut and by the way that reasonable perspective house is supposed to work if there are concurrent causes that is so here for example there was much in the record about the shoulder of the kid she needed care for the shoulder for just for the knee that also provides a benefit to the shoulder how does this all work well if it since it wasn't spelled out in the policy and there is nothing that precludes concrete plans i guess she could from the policy itself provided you know identified matters relating to her shoulder that was offered in support of her her knee and to be frank the matter related to her shoulder and i had to do with her being able to put on her bra and she testif that you know her caregiver testified she can put it on but i think there was a distinction made between you know if if i saw any elderly person and i went to help them it doesn't mean that medically they need the help it means that i'm trying to be a nice person it's she didn't need any more services for her shoulder for six months other than she was having injections to enable her to function better but that was the main issue that had to do with her shoulder yes raised on the policy itself which is all the district court considered for reasons that i will explain and secondly i'm going to go into the extrinsic matters that have been attempted to be raised and i don't believe are properly or properly before the court the issue here is nothing more or less than can there be a policy limit on a long term care policy and the district as a district court correctly noted would do what their definition would do is make this into an unlimited lifetime benefit policy with no cap when so ever that can't be true because it ended after whatever the maximum amount  that the shoulder injury the issue is whether then she can start a new period of that if it's for the knee injury but every concurrent cause every concurrent thing that you're getting care for can potentially under the appellant's reading of the policy result in and additional benefits add in from item the way this policy works just to go back to basics it is a long term care policy and what it actually covers it doesn't specifically cover living bathing dressing poila ting it doesn't really matter when you go on claim and you're on claim it doesn't matter what the reason is why you can't do those activities really get to the news when you only get one shot that's it no you get one shot and the last you go back to the beginning and you look at what started that care only look at the book at the appellant's hypothetical you break your arm and this policy has a has a weekly marks and it has a maximum for any one period of expense and then it has a weekly maximum if you divide them it comes out to a year it's fifty two weeks you get fifty two weeks of care so actually she's been one of the because she's not using the full extent her periods of expensive tended to last a couple years but at a minimum you're going to get one year of care if you break your arm you need four months of care you have a stroke at the terminations of that four months of care you still got eight months of benefits on that policy then when you've played out those eight months of benefits the company would go back and look and say well what started this period what started this period was the broken arm you haven't had any care for your broken arm for eight months you can get another period of care for the consequences of the stroke so what you do is you don't have to wait six months you have to wait six months it's been six months you've been eight months of care only for the stroke so it has been six months you receive long term care services for the cause or causes that started in the first place so there's no ambiguity here the cleeve the period of expense begins your honor noted begins when the payments begin and it ends when you have been six months without care for the same cause or causes that's what allows you to reset the clock that's what allows you to restore your benefits but if that thing you get is chronic and the evidence is undisputed that her shoulder problem is chronic it is never ever ever going to get any better or you still you know went on premium she's still paying the this policy will terminate does not use the word chronic but to say that in six months without treatment without long term care services for the same treatment you actually define it in a way that long term care services is defined broadly it doesn't just include people coming into your home that includes any therapeutic and a diagnostic services related to that cause so what it means is if you have a chronic condition and once you get better from our chronic condition for six months after their condition has caused you to spend seventy eight thousand dollars for long term care that is the limit on the policy and it will not reset or why should you be a stopped or something at least in this case from ambiguity any ambiguity is construed against the maker but ambiguity has to be in the facts of this case it cannot be hypothetical that's looking at the bank of the west case that appellant cited page one of their brief page one of the brief ambiguity must be on the facts of this case and it is undisputed the period started for the shoulder she hasn't gotten better from the shoulder to this day she needs services from the shoulder as far as we know so it has never been six months without care and it's more than just her brush she has she has our raw pathy she has bone on bone in a shoulder it's affecting not only bra and the reason it's important is it's dressing it's part of dressing it is an activity of daily living it also affects bathing it also affects other activities of daily living it's all in the record over and over again from her caregivers from her doctors from an expert we hired that has never ever had a motion to strike that was is only relevant is only relevant to the restoration of benefits the or the triggers under the policy or simply your inability to do the activity of a living if i just go to the policy and  for pages then it goes to benefit provisions benefit right you how to qualify for benefits you qualify for benefits by either being unable to perform two or more activities of daily living right or being cognitive is say anything about why or how it doesn't say anything about the period of expense now but that's in there that's a limit in the very front the deck page of the policy where like that the debt page of policy is the first or second policy limit eighty thousand dollars for any one period of expense and there's a weekly limit on the policies right exactly and then a for any one period of suspense is eighty one thousand six hundred sixty eight dollars and seventy five cents you know that's been updated that's how it sits right away there's a five percent escalator on the policy annual escalator on policy or any one period of x and there's a weekly maximum and as i said if you divide one by the other you get fifty two  so then and it says we will not pay any more than the maximum benefit for any one period of expense for any and all claims under the polic only way to get more than the maximum period of expense is to restore the benefits and you have to have unrelated unrelated injuries where the original cause has completely yeah  in that would require some sort of service although not benefits under the policy that that prevails over your letter and say hey look you know this policy we understand got a chronic condition you know we might think twice about maintaining this but to lawsuits where we said if you don't get better from the first thing you're not going to get any more benefits and i don't know how much clearer we can convey the message that if you don't recover from the thing the put you on benefits you're not going to get any more benefits we don't have control over whether the policy holder decides to stop a minute she said she deposed that she deposed the can't just sort of in the way you treated no it simply means that the company can't unilaterally end the policy can't just say i'm sorry you're not going to have coverage anymore as long as you keep paying the policy you're the record that letters have been sent that say you may want to consider canceling your policy i know it seems it's a standard clause in the letters when we tell them you're you're not going to get any more benefits so let me talk about the extrinsic these issues were never raised in the district court look at the look at the brief in opposition to the motion for summary judgment that we filed says page sixty seven of the record resolution of the breach of contract issue raised invited here and it's ways you can consider you have the ability to consider non ways issues but only in very circumscribed you guys had some pretty some pretty good luck in resolving the first the second dispute right to a settlement o leslie the daughter is not a policy holder or anything she says that somebody told her is utterly irrelevant it would be the understanding of the policy holder and here based on the application and is the policy holder she is the owner what was said to someone other than the policy holder is irrelevant a statute of limitations problem when something that was said in two thousand and one parole evidence rule there's also a statement in the brief that there were no modify the contract or anything like that that's in there that's a forty eight record forty eight so they are asserting modification or trying to say the words of the policy don't matter what matters is what we were told back in two thousand and one that is somebody modifying the terms waiving requirements of policy which is not allowed there's also just been no effort to to say what the elements of a stoppel are and whether the evidence here would meet them also there's been during this appeal the thing has been on shifting ground the original argument was ok you are stopped because you settled the first lawsuit and that meant that we  delayed in the end of benefits and you're trying to say that we can't get a restoration of benefits because our benefits stop being paid that's not the paul that's not what the policy says the policy says you have to stop receiving long term care services so we pointed that out in the air police brief and the reply brief it came back that the paying not settling the first case and not paying it right away meant that she didn't recover from benefits again there's absolutely no evidence of that it's undisputed that her condition is chronic and she will never recover from it ok see my time is up thank you you have a minute for revival from new york and with really quickly first of all in terms of mediation just so that the court understand what mr hopper said was absolutely not accurate what happened was i initially got a call from the firm that said they wanted to engage in mediation i gave them some judges names the very end this is at the district court level the very next day the judge in the district court was in time about the district about here well and i was going to say i was moving to here and what happened here was that we were on the phone and mr hoffer said that he did not want to mediate and your mediator then called me back and said i'm going to talk to some more coming back and that they do not want to mediate so we did not mediate in this venue so i just want make that clear the second thing is and i believe that the court heard it itself and i think this is one misunderstanding by the district court when you talk about the six month washout period counsel himself has said he believes or his bank is asserting that my client has a chronic condition for which she will never ever ever get a benefit again and while he says that they cannot cancel the policy by telephone the law however it was set up maybe there is a policy that they can set forth or they can sell in california where they can have the ability to cancel i don't know that but what i can certainly say here is that they their policy is ambiguous i believe that in terms of the way it's marketed when you're here for seniors everyone knows what a seventy thousand dollars or eighty thousand dollars going to do for anybody these days in terms of care so if a company wants to be here for seniors they either should be here for seniors or they should explain to the seniors what they really are here for and what the benefit entails bankers life has a policy that they will give you one benefit after you get that one benefit you will never ever ever and for example when someone says someone has a chronic condition i'm not a doctor and whether some a condition is chronic doesn't mean that it will or will not interfere with the activities of daily living so most certainly there would need to be more but and what ends up happening to is finally and i think just to say that bankers urged the appellate court in one of its cases when they said bankers versus roe to say we and next case for argument is united states of america versus