of stairs and the only evidence that exists shows that she died as a result of intercranial hemorrhage it turned out that she also had a high level of blood alcohol in her in her blood at the time there is no evidence whatsoever that alcohol caused or contributed to her death was the result of an accident the court used the wrong standard because accidental death and dismemberment insurance is and has always been classified d in the state of maine where unum is registered as a type of health insurance it's it's civically included within the definition of health insurance and it is not included within the definition of any other type of insurance and never has been therefore the prohibition against discretion by claim or applies and they were not entitled to use discretion but more importantly even if they had been there is no evidence upon which you could co one important one where the insured also fell down a set of stairs with a similar brought out the whole think it was actually higher diagnosing days later the court found the exclusion in the plot because in this case the basis upon which the claim was denied was a list of generic symptoms that may be caused as a result of somebody consuming too much alcohol not upon any evidence that it did in this case cause any of those symptoms and  is not accidental injury insurance the accidental injury insurance you're referring to exception refers to a limited policy that only covers accidental injury that's not what this is of insurance which involves underwriting involves a generating it involves a medical condition underwriting involves a difference between the two sexes  classified the real reason is it's never been classified that way but the real real reason is the state of maine he finds this insurance is difficult and the type of health insurance health care services to be honest it doesn't want to it's a problem with ambiguity in the statute but it's not a problem because health insurance is specifically defined as including bodily injury disablement or by accident or accidental means that's always been the rule and i think you're telling implying that they weren't the definition of a carrier includes anyone who offers health care unit has offered health care since nine hundred and ninety six this is defined mention his insurance as well as health care but it is a type of insurance and it's only sold by carriers that do health care insurance that blood alcohol at the point thirty three dollars level is sufficient to contribute to a d s that likely involved in a a problem of physical stability and being able to negotiate a staircase ok let let let me make my position on that very very clear the cases do not support the idea that a separate concept as a high blood alcohol or a stroke or anything of that nature contributed to the accident as opposed to contributing directly to the death and there are numerous cases on this issue they all say and it goes all going back eight hundred and ninety three  judge or justice passed william howard taft president when he was a justice basically made very very clear that the fact that alcohol may have contributed to her falling down the stairs does not justify applying the exclusion lest the media it could cause the person to aspirate it could cause it could be even cause the heart to stop if there was some evidence that he had done so then we wouldn't be here but there was no evidence only evidence was that banging her head on the side of the stairs we assume that's how the intracranial hemorrhage occurred was causing her death i mean if they had done  substantial evidence as to what did occur because anybody might speculate and certainly unum would speculate and did speculate and the district judge also speculated it's reasonable to assume woman she's been consuming alcohol for years and caused her death so far we don't have any evidence and i believe the fundamental bedrock principle in this case is there must be some evidence to deny a claim interpretation issue so i think it's an important issue in deciding this case maine has not the main courts have not asked on this question that's before us and i understand it that the th circuit would probably like to side this case on in as narrow an interpretation as possible so that they don't interfere unduly with what may may do in the future but the narrowest possible grounds to decide this case or st exactly what judge str of health plan and that also that same language appears in the exception to health insurance on which plaintiffs rely heavily if you look at the actual plan language  the plan line which says the benefit will be played only if an accidental bodily injuries results in one or more of the covered losses listed below and accidental bodily injury means bodily harm resulting  independent of all other causes the actual language of the policy is makes clear that this is an accidental injury policy and that's exactly what was contemplated when the maine legislature enacted after this case was actually filed it actually uses the term health insurance on which you are a wise however first of all it doesn't apply retroactively but also it's the  health insurance includes those upset exceptions for accidental injury only policies and that's exactly what this is two thousand eight hundred and forty seven dash v actually clawed back one of those exceptions and said well this applies to health insurance which includes disability policies and i think that's exactly what maine was trying to do is a trying to outlaw discretionary clauses in health health insurance traditional health insurance and in long term disability and that's what it did it accidental death is not a disability policy it is not a health plan and therefore those statutory commandments that  can't discretionary language don't apply to this plan that's the narrowest interpretation of those statutes that you can take in and clearly shows that they don't apply to this case  earlier statutes it's a subsection basically of health insurance health plans are defined as those that provide health care services we cited a definition of health care services from a different chapter in the statute which  pointed out and i agree that it isn't a different different chapter however it's not defined in the chapter that we use and that's pretty good evidence of what a reasonable definition of health care services is in plaintiff yeah this point doesn't provide health care services so there's just simply no way that this plan is covered is can is should be considered a health plan as main legislature has  appellate question which is it your obligation to actually produce some evidence as to what caused  the deceiving to death as opposed to just making up a logical assumption about how things normally go without actually putting something into evidence in this case to indicate that alcohol contributed to the to see it instead well yes your honor and i think you know taken to its logical conclusion basically plaintiffs argue that the alcohol exclusion shouldn't apply unless it's a witnessed death and everybody knows exactly what happened we do have evidence here and we have more than a scintilla of evidence to support this definition we have the opinions of medical experts she had a markedly elevated alcohol level at the time she for the the crime scene circumstances which were looked at by the end of independence police department indicate that a fall happened she had broken glass you know it looked like she was blood coming out of her nose at the bottom of the stairs and they said when that happens they assume that there was the intracranial hemorrhage that caused her death but they said you know it could have been that she knocked her nose on the way down and just had a bloody nose again there was no autopsy performed by the independence police department to confirm that that was just an assumed cause of death and what our experts said is look under these circumstances where she was highly intoxicated she fell down the stairs she clearly knocked her head in some manner and was found at the bottom of the stairs there are two ways that alcohol could have contributed to this death one  is the kind of more obvious one which is that she would have been unstable on her feet and probably fell down the stairs accidentally causing her death the other question i think help me clarify is it your responsibility to establish that alcohol could have contributed or that alcohol did contribute to the descendants well i think that we have to prove by more provide evidence of more than a scintilla bit less than a preponderance so we don't have to reach the normal civil preponderance standard of whether alcohol caused the death right so if this were a normal civil  case a judge would say well this is a fact issue what sent it to a jury we don't know exactly what happened but this is not a normal civil case were reviewing the fact finding decisions of you know which are supported by more than a scintil influences from the evidence that's before us very rarely will you know a contested death be witnessed and one of all the facts and we'll know a one hundred percent to you know beyond reasonable doubt standard or anything like that what we have is is a best guess and quite frankly the evidence supports our conclusion more that it supports the conclusion than alcohol had nothing to do with i mean it it's just obvious from the circumstances when one other thing i wanted to point out is that the medical experts that you know retain said that there is another way alcohol could have contributed to this death which is that maybe she fell down the steps and had a head injury but the extreme alcohol intoxication also affects your body's ability at respiration and circulation and perhaps she would have survived that fall if she hadn't been so markedly intoxicated but because of the high level of i think turning back to the statutory interpretation issue to you i think it's very clear that that the main legislature in what it intended to do plenty of cited quite a bit of which from testimony from a unum witness before these exceptions were put into the main lot into the extent of matters it went on for a couple of pages he talked about you know who testified before the main legislature that they were concerned that this health insurance definition was so broad that it could encompass all these other forms of insurance that were not necessarily meant to be encompassed by the term health insurance and so it sought to get that very exception language put in so these non health plans don't accidentally get caught up in the definition of health insurance well that's exactly what it did it carved out accidental injury policies this is by the terms of the policy and accidental injury policy that's exactly what this exception was supposed to address and that's what it does address and again though he relies heavily on the definition of health insurance health insurance doesn't appear in forty three of the three dash eleven that statute it only talks in terms of health plans which are defined separately so health plans are a subset of health insurance in as he c this is not a health plan and there was another suggestion in the during the administrative appeal that ms williams was suffering from some other that it could have been vertigo or drug side diagnostic medical or surgical treatment so it would in compass sort of those theories of how she died as well it would not be a covered climb and finally i just point out in the district court the plaintiff in their briefing conceded that you know had evidence substantial evidence to support that alcohol contributed to this loss that is a direct quote from their brief what they are the only thing they challenge was if you don't have a proceed with your yeah that's all it is your hell if they quote it is reasonable to conclude that the alcohol tar intoxication contributed to the loss that is a direct court to consider under that standard but again we don't think that's necessary u i'd like to take those points in reverse order first of all we never conceded ever in any document that kathy williams alcohol contributed to her loss it may have contributed to the fall that's possible but to her death there is no evidence even if we h even if my co counsel in this record had said that it would have been correct it doesn't amount to a legal concession but he never did he never said they characterize what he did say as a as having conceded the only concession that's ever made in this case is unions concession that this death was an accident that's the only concession so  their failure to find a citation is not coincidental because there is no citation secondly they are insisting that this is an accidental injury policy if  you read the the policy if you read the title of the policy if you read anything about the policy you will know it's not an accidental injury policy the exception in seventy  job injury and has nothing to do with accidental death it has nothing to do with this member men it is not this policy and in fact the testimony of who the person they call the witness he actually was an officer of the company in support of that made it very clear that he was just talking about a very limited pay policies such as specified disease hospital and then the dental vision disability income and long term care if that had been the case then section subsection one would have been amended to get rid of the term disablement or death by accident or accidental means all they had to do is take it out of it they didn't need an exception all they needed to do was take today and we also will continue to review the briefing that you've submitted and rinder decision in due course thank you counsel thank you so much