policy exclusion for cute or funny alcoholic intoxication is ambiguous the policy does not define any of these words plaintive offered one interpretation she claims is reasonable reliance wrote the policy has offered two different interpretations each time claiming the current interpretation was the only reasonable one the district court rejected both parties interpretations and the claim that the exclusion is ambiguous before applying a fourth interpretation of the multiple interpretations only plaintiff's attorney addition must be adopted as long as it is not unreasonable so do you have to in order to prevail do we need to review this to know the standard view is because this is a contract interpretation issue well ok you argue that the district court's interpretation that mr surround was acutely intoxicated at the policy should be reviewed but how can we  reconcile our other arrests of cases which we have held that the interpretation of contractual terms for example whether someone is disabled is refused for clear air or mean house verses amec construction know if it's a policy language and interpretation of the case you're referring to i don't know offhand and i don't know whether it was actually limiting its review to actually the definition of disability or whether it was reviewing the factual findings that the claimant was disabled under that definition well did did the district court here review any factual evidence and interpret in the contract it did not reviewing factual evidence in reviewing the code would you concede if it d that then that requires a different standard of review no i would say that contract interpretations or questions of law and those questions of law are interpreted as you know what the court did as it turned to dictionary definition s and those can be readily ok but if the district court reviewed factual evidence to interpret the contractual terms just that require a different standard of review i don't believe so and here i don't believe the court actually reviewed any factual evidence to interpret the terms the court interpreted the terms and then reviewed the facts to apply them to those terms as interpreted or what's the best you know i know there or is there any case that goes this motto to find a q i found no cases that were below point one six i believe so that's over twice as high as mr surround and reliance has provided the agreement doesn't define a q right rect then none of the terms at issue today are defined by the contract nor does the contract provide any context or or examples for how to interpret these terms so is this just come up a lot intoxication only acute alcoholic intoxication as issue that was the basis for the denial the district court recognized that acute alcoholic intoxication was the standard for being the determination that the court did is it found that the way to find the meaning of acute alcoholic intoxication was by looking at it in the context that it was written in the tallest which is next to chronic and since chronic has some definitions on a temporal alone basis that means it's not acute the district court determined well that acute must mean not chronic and of course as we advance the argument by doing this limiting them both to their temporal basis it renders both terms meaningless because you are left with just an intoxication exclusion so what should the definition of acute be the definition of a cute we had vance is very severe so intense so when you have intoxication and you combine it with intoxication it's modifying intoxication so not intoxication isn't enough you need to have very severe intoxication and this is the way the term is ordinarily in commonly used in all of the cases that we cited the blood alcohol content are quite high in fact they're multiple times higher than the point zero eight percent b s e it is commonly known across the country for intoxication so this is the actual film go ahead i'm sorry do we have to use the blood alcohol definition and resolving this issue can we use a dictionary definition you can use a dictionary definition but plenty of offers that it's reasonable to use the point zero eight percent blood alcohol content level and because that is a reasonable interpretation and in fact it is possibly the most appropriate one because as this court said in and harlech policy terms can be interpreted if they have a pulse in terms of the well established meaning in the context of the claim or given that meaning and here mr stone was driving a non commercial vehicle he was in california the policy is governed by california and california has a driving while intoxicated law that's at eight point zero eight intoxication definition so it's very reasonable to apply that point zero eight definition here mr surround with a point  but alcohol level does not meet the point to a level and then when we add in acute to intoxication he certainly doesn't mean that under the meaning that it did the district court defined in terms of blood alcohol  besides because you're offering one view that you feel is reasonable i think i believe that the appellant's offered another view and then the district heart came up with this sound view right correct and then i of reliance have written a policy that said if you have any alcohol and any alcohol or drugs in your system you don't get the accidental death benefit absolutely it could have and it should have been clear if that was the end of the parties and in our briefs plaintiffs cites to a number of different versions of alcoholic intoxication exclusion one of which does have a threshold that is if you have any intoxicating liquor in your system at all the exclusion applies ther that approach if we disagreed with you on the standard of review well the standard of review for contract interpretations i believe is is  know when you're talking about the standard view that might have applied to the decision of the underlying fact finder meaning the lions because in arrested as often this this split between the novo review and abuse of discretion and contra proffer and i'm this court has found doesn't apply an abuse of discretion or v's but i would apply for the district court now i believe contra proffer and would apply because this court is is at least point of his advancing is reviewing  excessive or extreme what about sudden if the comparison is between acute and chronic and chronic being something that is continuous acute perhaps being of sudden with that make a difference well i don't think that what you said there which i think is key is that acute in comparison to chronic and there is no principle of contract interpretation that requires the key here to be interpreted in context with chronic in fact this court in patterson reviewed a disjunctive exclusion for mental emotional and nervous disorders and only to be there with headaches and whether that was a mental disorder and in paterson this court looked at mental disorders never reviewed the other two terms to settle on a meaning of mental disorder so i don't think that acute needs to be writing in conjunction with chronic however here they just record did that by turning to a dictionary definition and unfortunately i think it led to a definition that rendered the terms meaningless because it's reading on the temporal timeline becomes just you please the court good morning joshua bacharach i represent defendant appellee blind standard and just quickly addressing a question by judge callahan if you're dealing with a question of a mix question of fact in law then it is still reviewed for clear error and i think that's the case in the case that you brought up but i think it's also here where you can just look take it completely out of context the court was interpreted intoxication in the context of the language of the policy but also with respect to mr surrounds condition the court was looking at acute or chronic in connection with the language that was presented here and that's the big problem that the plaintiff has here is you cannot read acute separate from acute or chronic that's the language in the policy and there's a disjunct of conjunction and i think the district court well i guess rose that i guess here's the problem that i have with your argument and i'd like you to address that because when i first looked at it you know i mean it has to somehow put the person on notice correct it needs to be they need to understand what what would be covered in california you wouldn't be arrested necessarily for a crime you have the point zero eight i believe that back to my old days as a prosecutor i believe that california also has an enhancement where it's something like a two  bad that that's an additional because that's not only considered to be under the influence that's considered to be like over drunk as it were under the influence and then they're offering you know i mean how would someone in california when you know i think bus drivers you know you have it as part of the driver's test you know that a point zero eight is going to put you into troubled ground you know how are they on notice that something that's under that would be considered acute well a few you're talking to different that's their interpretation by now but they have that interpretation that we got to a dictionary then the district court came up with that well i don't see how it can be explain your honor first of all counsel's wrong in saying that now we've adopted this alternative we docked what the district court said in our opposition to their summary judgment we said acute means severe means sudden onset we did that before there was the judgment and more importantly it doesn't matter what i said it doesn't matter what counsel said the district court was reviewing this to no avail and came up with an interpretation so you have to look at acute or chronic but is there any case set that low and acute man point eight or acute meant any alcohol right well here's the thing it doesn't include the point oh wait it doesn't include the look at your state driving law because it applies to any loss to which intoxications the cause but then they'll probably just defining intoxication well they aren't really problems and because a reasonable person with the district court did was it looked at dictionaries that looked at what a reasonable person would consider and a reasonable person looking at intoxication doesn't think no wait i must be you know the dictionary and am i an unreasonable person because i'm thinking the other way no i think you have to look at the context of it and without any reference to driving in fact there's a court decision that said that the plan was impute into the policy a state's legal limit when the policy itself didn't do so in here this policy doesn't limit itself to drunk driving to intoxicated driving it's any intoxication which causes a loss so it wouldn't make sense to put in the state limit that would be a point out that if this isn't a status that's the other important thing counsel said that we could have put language in there they said if you hit this level you don't get benefits that's called a status exclusion and that's not even permitted for intoxication in california you have to have this causation and so what we're saying is if you're intoxicated and it causes the accident then i point out to and causing the accident would be a kid from your interpretation is that crack they drank the al called just before they the collision but you choose intoxication and drinking the alcohol before the event may or may not have any effect and talks occasion well you know it's interesting and i'd love to i did the research and i can find a case i'm sure it's years old i'm certain years ago somebody said this intoxication exclusion is ambiguous because it doesn't state whether the intoxication is acute or chronic and now we have counsel saying well it says acute or chronic so it's simple yes because it could be either one and a superfluous because it is redundant no it is comprehensive just because language is comprehensive doesn't mean that it's him big us it means we're trying to say acute or chronic it doesn't matter if you drank over the extended period of time or you just got drunk right then and there it applies because there are cases in which people by the way chronic alcoholics will not have had a drink in hours and hours and hours and yet their level of alcoholism is still so high that they're impaired and they're tru intoxicated and so this language is making it clear that it doesn't matter temporally when you became intoxicated as long as that intoxication caused the loss it's not going to be covered and so in this case the court correctly looked at this phrase acute or chronic and you can't separate the acute like he's trying to do here and say acute here means means the severity without looking at the exact phrase which is acute or chronic the or meaning a disjunctive conjunction means that there are alternatives and if you say we're not going to look at the alternative you're now not reading that you're taking words out of the policy and that is a preeminent rule of contract interpretation that you can't render other language meaningless and that's what his interpretation does here's an example let's see what about ok but the what about the end the insured you know i mean i'm having trouble following your r what about the insured if there are if i just don't see how it's unambiguous and they have a right to be on notice of what sort of behavior would make would render them ineligible for the accidental  well they have intoxication and the word intoxication is reasonably understood by the person as a did i don't reasonably understand intoxication as being a point zero to that causes an accidental i don't think that it would be reasonable to say that and again the courts have agreed that it's not reasonable to say that it's a point oh wait you fall the state limit when that's not the language in the policy right but what your closest case to the facts in this case because the closeness and the emperor viewing the cases that i could find i didn't find anything near this level a point zero seven i can well in terms have a case where it said it was acute with these facts but beyond of the problem there is here again accepting his argument that acute means severity but i would like to add this one point i wouldn't add to apply even if we accepted your argument about sudden onset we still have the problem of trying to define intoxication oxidation and i can get to that and you haven't mentioned the term either but what about contra proffer and i'm don't doesn't the plaintiff have the advantage of holding the company to a standard which allows the plaintiff to interpret the language most favorably to the planet if there is an ambiguity that is correct under the novo review but in this case the district court said that let's look at first of all this doesn't define in terms of level intoxication apologize for being repetitive here but this doesn't apply only to driving while intoxicated any loss to which the intoxication contributes so if we were put in the state limit we couldn't do that i think a reasonable person seeing this says wait intoxication is not limited to drunk driving then it's not going to have that level a reasonable person understands take take out of the picture driving because it's not limited to that so what does intoxicated mean intoxicated means impaired physical or mental capabilities and that's what the district court held here it is unreasonable and i will provide the cite to the case again there has been a court which said it is unreasonable to impute a state's legal limit like counsel's trying to do are but then we have the modifier acute or chronic chronic is off the table obviously but it is taking what you've just done a fied and applying the modifier acute under the contra proffer and i'm approach isn't your opposing counsel's argument reasonable no because it's not a you're not taking chronic off the table acute or chronic is a phrase in the policy and while only one applies you have to interpret acute in the context of acute or chronic are you not suggesting that the driver in this case was under chronic intoxication no but what i'm saying is either one or the other it is either one of the other but you can say it's temporal but i'm going to apply the severity the severity interpretation of acute because that's what he's asking you to do but what about the sudden onset which is your approach and it was a onset within an hour of this crash he drank three martinis and i want to add one point to talking about severity he normally and i don't think it's the correct interpretation it's an unreasonable one but when you look at severity here even in that context here's a man who is wife said he only drank one to two drinks when he drank one or two times a week wanting to hear he had three within an hour actually within twenty minutes of leaving he had his last one if i'm not mistaken fifty percent more in the district court point is up fifty percent more than he normally drinks so for him that is a severely high level compared to what he's normally drinking but is not the caught the context has to be acute chronic an example is going to make earlier is let's say somebody says would you like an apple or orange they're talking about fruit you can say are injured in that context is referring to color it's not so here the chronic or acute we're talking about temporal meaning and i mention in my brief that we we cited to several cases from this court all of which have looked at chronic acute or chronic the phrase it appears everywhere it is a well known phrase and it's understood to have a temporal media about if you are a drunk if you but you don't happen to have any alcohol in your system on that date but as a result of being a drunk you're j not you know he's kind of destroyed some brain cells and you're not as sharp and you're not as is that chronic but that person be disqualified and a chronic they were not i if they have but if they had point out to they could be still but the those facts aren't even here in fact point zero two is not that i'm just trying to decide i understand as how do i read this and know that i'm covered or not covered you read it by saying i'm i consider intoxicated an impaired i'm intoxicated i know i can confirm that you know i see i don't know about here but i know where i live there are ads on t v that says buzzed driving is driving while intoxicated is against a law that would tell me geez i'm not you know i'm not really drunk i would consider myself to be overly drunk but they're telling me that i'm going to that i'm intoxicated enough to be arrested so in that case i think it is understood and i'd like to if i could make one more point on that too they rely on their expert dr clark to use a toxicologist who said that mister surrounds level he would not have been impaired he would not have been intoxicated and he relies on and this page is in the report this is the n t s b study but what dr clardy did and i think it's speaks volumes to the lack of support for his report he didn't include the abstract on roman numeral two and that abstract says statistically significant risk occurred at point zero four percent be a c the government studies have realized that point zero for this  question because you offer or ask you argue a secondary basis for a ferment on the alternative ground that mr surround was disqualified from benefits under the controlled substance equation because he voluntarily consumed marijuana and my understanding what is the evidence that his that there that his consumption of marijuana contributed to his death because i know that there was an expert that said that marijuana can stay in your body for a period of time and my understanding of the evidence here is they did a percentage of tests but they didn't do an actual blood test or whatever they did a present of test now the test and i know i'm going to overtime in this so i'm just answer that question thank you i appreciate that so the issue here is yes if you look at this strand of hair you can tell if somebody within thirty days has had marijuana happened well what they did he did the district court make a finding with respect to that no the district court did not really said it was necessary to do so i think that that means you have to at least remand the case back to because for this reason dr holland said when you take the we now know that the thirty days isn't from that test that test shows the near term taking of it what i was saying is if you take a hair sample but that wasn't done here if you take a blood sample and it's positive for marijuana that shows a near but we don't have that here do we said that he was taking ibuprofen like drugs and that those profane like drugs can give you a false positive for marijuana the problem is since the one nine hundred seventy s that has not been the case understood to mean of relevance quote very serious or dangerous that is on page eleven of their brief to the district court they are offering a different definition of acute today that is a temple one this is very concerning when  what about marijuana thing so dr clarity ultimately his conclusion is the one that i believe this court was concerned about is you know nothing about in fact whether this was a blood type asking to actually go to that while counsel asserts that this is a blood test and thus assumes without any evidence in the record that this is of a recent origin there's no evidence of that in the record we have no idea when or even if he can see in this we also don't know if he consumed it voluntarily and that is of course in the tiriel term in the exclusion i read subsection seven there is the level doesn't matter it's which the george and voluntary consumption of an illegal or controlled substance is a contributing factor so there's no basis for the district court to make a finding that he voluntarily concealments with that thank you very much thank you very much counsel the case just argued will be submitted for decision