here the district court committed reversible error by failing to find that the state statutes relied upon by mr rideau were people were preempted due to their conflict with the exclusive remedial scheme set forth in section five this is not withstanding the district court's finding that portions of six hundred and sixty three dash ten of the hawaii revised statutes do in fact duplicate supplement and supplant in a risk of five fold to a remedy but the district court th merits the circuit also held that whether or not the state statute is exempt from five hundred and fourteen express preemption it may still be conflict preempted under section five a two way also helpful to this as to fall within pilot lives categorical bar sergeant question just a just sort of a housekeeping question is it true that the parties stipulated that if we find that hawaii statutes are the relevant rule of decision ten requires a health insurer to go through the lean determination process results in a limitation as far as the amount that would be would be paid to the lienholder out of the amount of course but what was the exact stipulation that your decision in two thousand and four relied on the holding in rush prudential to hold that the state external review statute in the insurance code was conflict preempted due to its reference to the hallway a ministry to procedures court determined that that statute the insurance code statute that allows for the external review that allowed for the judicial review under chapter in ninety one of the oira statute was preempted on the of the secretary of labor filed in amica in support of neither party's position but their requests jan infirm and it's right there there i mean they're not they're not saying they're for either of you but they're saying you're wrong essentially what they're saying that the district court correctly decided the removal arguments however the they are also agreeing with the district court as far as the preemption analysis is it is concerned and the problem with that briefing your honor is that it doesn't take into account the fact that six hundred and sixty three dash ten sets forth this adjudicatory process the rd circuit decision in singh in two thousand and three painted a clear distinction between a state subsidy of insurance authorized by state insurance statute in that case the maryland anti suffrage patients that you could provide the relevant rule decision because it did not create a new claim or remedies or larger remedies prescribed in section five a two way that is not the case here decision where she concluded that these statutes were preempted so each may graciously invited us to participate in this case as an amicus curiae so that we can attempt to defend to the decision that judge mall way reached in the n and now since you have just a little over four minutes what's your best shot your honor the problem with what the district court in this case did was that it reframed the insurance code provision in such a way that the court would not have to do the conflict preemption analysis under pilot life i have a question about that so i really appreciate your raising it are you ask sort of very basically  empty unfair claim to practice so which way should we view it your honor i think of reference to the district court's decision in this case is as a good way to frame that the extended discussion by the district court way legislative history and the decision and you comodo which was of course i'm not a receipt case indicates that the judge was far more focused on what the legislature intended to do between those two statutes than on what the legislature in fact did what the legislature in fact did in the insurance code was force or is supplants to pop over to state court and subject itself to that alternate adjudicatory remedy under six  ten now the hawaii legislature could do that but it has not and the just record cannot do that in the guise of interpreting the statutes the insurance co provision does not simply incorporate a limitation judgment and prove that your lien is not you know it that there is no threat that there is a duplicate of damages so it's the incorporation of the process in the insurance code provision a state process that allows an opportunity to show that there is a windfall that there has been a wimp on impermissible involved which the district court in this case concluded clearly did conflict with a wristwatch so by incorporating in cyclo it supplements the rest that's your problem right it's a supplement and way in which this is impermissibly conflicts that use the term conflict because conflict preemption under pilot life focuses on whether the state law duplicates supplements or supplants and what certainly doesn't duplicate right and whether it supplements or but it seems to me that's that's just the genesis the gist of your argument it is your honor the district court found that the six hundred and sixty three dash ten process supplemented the remedies under section five  two and yet fails to conclude that the insurance code provision conflicted with a risk by forcing a risk of plans to go through that preempted process and six hundred and sixty three dash ten he of the statute as if only the limitation was incorporated into the insurance code rather than this entire preempted process not have been possible for him to conclude that this was a claim that could have been brought in in federal court so it must have been brought in federal court and that wasn't independent of a plan so so that a five so that the so the claimed you just move it to federal court and proceed and go all the way through the analysis to five hundred and fourteen dollars and then decide villa at the very end of the analysis that we have to circle back and view this all in in light of five o two yes absolutely and i think one of the problems is that the judge does appear to have only used the five o two way analysis on the complete preemption and the end of the decision tree it just sounded it initially that you are checking this argument to the top of the decision tree i think it's at the bottom you get to the same place but you've answered my question and i appreciate your pub salute we agree that the statute was completely preempted and  problem we think is that the court avoided doing the conflict preemption analysis under pilot life with section five hundred and two way by rewriting if you will the insurance code provision to do something that arguably would not be objectionable under arrest thank you thank you jurist in the not so case essentially because the not so court concluded that there was no cause of action under the insurance code it is there is no private right of action under the insurance code that was not the genesis of plaintiff's claim therefore the only claim was under six hundred and sixty three dash ten which that court concluded was expressly preempted that was all included in the orders on reno and therefore the court did not feel it needed to go any further than the arguments made in the remake and orders in order to conclude that the case should be dismissed on the merits and granted it would have been helpful if she had shown her work i think that would have been helpful to the district court in this case but if the court has no further questions i thank randy riddle this can be very complex under result or it can be very simple mr rudolph and all we need to do is look to the stipulation which was the final  of what mr rubio was asking the court in the rd circuit is under hawaii law all health insurers have a right of reimbursement all health insur have a right of reimbursement all health insurers have a right to obtain information from their insured about any rd party case all health insurance carriers must provide benefits even though there is a pending rd party case that is hawaii insurance law mr adel was exercising his obligation to have that  provision of the law all health insurance companies are entitled to a right of reimbursement that's what the statute says the stipulation is clear under why law has a right of reimbursement under y law mr o'dell recovered money and h m a agrees that mr o'dell through the unfortunate situation limited insurance and the horrific injuries his recovery did applying to hawaii law when he filed it when when h m a a said we're not providing benefits because you have a rd party case and we've cited in the record mr adel filed and a recess action because he was asking the by the way you have to can comply with the hawaii insurance code for thirty one so coming back to your to the question mr odell couldn't was not seeking benefits under the plan he's seeking an income but benefits right a rd party situation shall have a right of reimbursement and that's what the petition with was seeking to do well but the dispute seems to be grounded in whether the h you don't have to have a contract that requires reimbursement under hawaii law all health insurers are required or have a right of reimbursement under hawaii law under white insurance law no matter whether it and take it one step further if the plaintiff is unable to does not follow the statute then he is barred from using plan it's irrelevant in hawaii all health insurers have a right of reimbursement which is set forth in the simulation that we talked about so the only question and in fact if the case is in litigation a circuit court cannot dismiss the case either by judgment or stipulation without st making sure that that right of reimbursement is is exercised its it all health insurers have a right of reimbursement regardless of what documents or plans or anything i hope your honor that i answered the question we have spent many pages in our in our brief explaining the mis characterization the mis understanding of this concept this had nothing to do with asking the plan to pay money to tell the administrator to do something or to rule that the plan somehow was deficient or invalid under avoid a law you don't even look at a plan again i come back to this all health insurance companies have a right of reimbursement no matter what plain and simple and plaintiffs have to recognize that and the courts have to recognize that and by the way it is not the insurance code which incorporates the recovery saturated or the root of the review statute says any court of competent jurisdiction may i'm sure your analysis here why doesn't your client have to give part of what he recovered back to the insurance company does under our analysis he does so long as there's a determination either by agreement or a evidentiary hearing whether any part of that recovery belongs to me and duplicate or corresponds to what they paid that that's what the court needs reimbursement but from only that portion of the recovery that duplicate or corresponds right at the bobbin that opposing counsel has been stressing out very forcefully is that the mechanism that the state the district court if we were to affirm the district court because the district court denied summary judgment because you're both you're both cross appellants and i pele's or whatever on those so the practical effect of that denial of summ judgment to the other side where does that leave your client it there's a determination that under hawaii law or none of the proceeds duplicate what they pay right now how is that different than under remember the court would make that make that determination just what portion of the recovery duplicate what was paid or i mean what so how what has it different i'm just trying to understand how is it different for your client if we affirm the district court  mandated if has that issue still either way the fact that the district judge here leaves open some determination as to what part your client gets to keep right we believe that that this is not a five o actual i'm trying to figure out just practically why is it more favorable for you to be in state court than in federal court here because there would be no jurisdiction in federal court i know but what but the insurance company didn't win in federal court they didn't get summary judgement so what's left to determine if we affirm the district court here so there's two issues number one whether this case should have been in federal court in the  factual well by agreement but by agreement that they could not show that he recovered anything other than general damages that that w effect of what they were saying again we come back to this we are not asking and to one quick point on the saying arianna vein worth cases those we're all asking the court to do something in regards to the plan either ordering the plant to reimburse the plaintiffs or in joining the plan and sit and penalize the pant plan we are not asking the plan to do just a little trickier than anyone ever wants to it met unfortunately with a risk it becomes it can become complex or as we come back again this is simple we are not asking for the plan to pay a cent he think mr adel we are not asking the court to tell the administrator to do anything neither are we telling the the court to rule on on any sort of contractual or plan document that has nothing to do because under hawaii law it's plain and simple all insurance companies have a right of reimbursement factually it must be determined whether or mis understanding the nature of hawaii law you comodo vs tar our hardness of poi's supreme court made it clear that under hoya law all health insurance insurance carriers have a right of reimbursement that is the statutory right it was based upon and included in the insurance code based upon the determination of the legislature for a myriad of reasons why time is up right now reimbursement in the plan then there's no right to reimburse me at all can i refocus your question i'm over here i just started just a bit if i can if i may decide that just for my scorecard that i think this case needed to go forward under our authority is needed to go forward in federal court and create with the district court about that and then and then it but then for their great with the district courts analysis under five hundred and fourteen b and about how a kentucky association test right if i get to that then i was me to really change the discussion and discuss what i view it as a cautionary note to circle back to five o two but i think there what that opinion is talking about it's a little slippery but i think it's talking about another cause of action  if there's other places of the case lower it talks about a claim a different claim and that's inherently ambiguous because we know for talk about a claim under the plan our claim isn't a cause of action but at the end of the b i think that justice thomas writing for the court is pretty clearly speaking about a cause of action that right yes your honor and i would also why is that a fair assumption that it's really a separate cause of action it's a way to figure out whether there's been a windfall of a can you kind of for me that's the nub of it well it's a cause of action in a sense that you have to go through  process and it results in a judgment where results are going to result in a judgment well no matter where we land up here because this is a declaratory place that doesn't help me very much order would also declare what the lien holder is and title to under six  intent and there has to be a way of figuring that out and here what we have tragically is damages special damages that are so high that the insurance company as i see it is just not taking that on not really even contesting it they couldn't show that because  available limits were one and a half one million dollars but that's really just a function of what happened here and where we have to look a little farther about the way this game is supposed to work out so that that's still just brings you right where there's a stipulation or not here it still brings me back to trying to figure out whether or not it's fair to characterize the hawaii's mechanism from forcing this rule as a separate cause of action and i think i understand you to say that you agree the deal is really looking for and  suggesting can't have a separate cause of action right that's going would be consistent with another case that we have is out there by judge fletcher forgive me for not remembering the name of it is the case that turns on whether there was an oral contract and a telephone call to the insurance company in the end he said well this isn't a five o two action at all it's not it's not they're not looking for benefits that arise out of a plan at all there's apparently allegedly a telephone call it was an oral contract situation right so that this case law seems to really reinforce that we're looking for a separate claim in the sense of cause of action not a mechanism to determine whether or not there was in fact a windfall well i think it's also helpful to remember your honor if if we are looking at five o two a with work without regard to the