case the first us whether this policy of the american general sold mr other joy qualifies as disability insurance and doesn't doesn't the previous decision of the montana supreme court into that force yes i would  gold and the statute that this policy provides ensures a human being and provides a death benefit for an ox and i have no idea why the montana supreme court thinks that's disability insurance but it apparently is so so let's get to the next step does the cause in the policy conflict with this statute that governs disability insurance yes and first before answering that it's the medicine provision there's been some briefing on whether that's part of the coverage grant or whether that is an exclusion as we've pointed out in our brief both exclusion and exclusions and words of a taishan in montana are strictly construed against that and sure and analyzed the same way there's been some disputes in how we read the case and also what's all whether this really is part of the coverage grants or an exclusion and i would point the court to the discussion in both of those decisions and how we allocate burden  on who is this policy provision favoring those of does it favor the insured or does it favor than sugar and the reason behind that is if an insurer is relying on an exclusion it benefits it to get rid of coverage so when looking at the purpose of the exception is to provide coverage for them instead of make use of prescribe substance from a physician but to exclude you know any other u s citizen pursuant to a physician's or so let's assume i agree with you that there's a conflict i want to get to the question ok we asked you to be to address today what do we do with and neither party briefed in the district court didn't deal with it what do we do with the provision in thirty three twenty two dash one hundred one one so it seems to say we have all these requirements for for policies but they don't apply when the policy is a life policy or policy covered by the statute and go tells me that this is both a life and a disability policy so why does the provision that you think conflicts the statutory vision that you think conflicts with the policy apply in this case at all ok so if we read subsection c which the court cited in an sorter it's talks about life insurance and talman annuity contracts or supplemental contracts and then subsection one below the out so is provide additional benefit and we have it we have an interpretation from the montana court that says additional benefits just means benefits it doesn't mean benefits on top of gold says it rejected the argument in gold i mean that debt the reference to additional benefits when we look at the definition of life insurance means anything more than the in the covered amount and bolts also it didn't directly address  reading if there be no case in which acts known to benefit and accidental death coverage would fall under disability insurance which would also contradict old which held that accidental death coverage is disability insurance  and then we do explain activity i'm not sure why it would mean that no case fall under it would just mean that cases where it would just mean that the exclusions the statutory provisions don't don't apply to these kinds of cases you'd still this well i think of course i would be an option but i think also applying the statutory interpretation interpretation canons of the montana supreme court why the statutory scheme exists that it's  policy beneficiaries and we have but that just means the court hasn't said the policy beneficiary wins every time we interpret the stats no no almost but that's by the way that's the way i read their  i can't figure out why this life insurance policy is a disability policy but they say it is and it's montana law and that's what makes me uncomfortable about reading this provision unless you guys can clear clear it up for me because i  don't know how they're going to reach me i mean ask a couple questions other than what he's asking even if i get down to this idea that i have an exclusion of the policy which is not as favorable to the insured as unless administered on the advice of a physician don't i are still needed if you will remain on this to get evidence on whether th ceased was under the influence of a narcotic i think the court could still address thought because the district court and her order found to that the exclusion was i mean it seems to me that if i go with the montana statute which you say i should go with it says that the insurer shall not be paying liable for the loss contracted in consequence of being intoxicated or the under the influence of a narcotic unless administered on the advice when i read what it is that this person passed away for i am unclear that this happened under the influence you know somebody has got to take some evidence well i think on the record before the court and there's also a dispute of how we interpret a narcotic is it limited to strictly opiates or is it limited to controlled substances and prescription drugs that's all that's all reverse and start again district court and address those good issues well the district court also found i believe in order that miss rushing to war so did pass away from a prescription drug overdose well narcotic prescription drug the problem is narcotic because there are prescriptions in there that are not our critics depending on if we're looking at the strictly medical definition or under the policy it's all i'm doing is what it says and now i'm looking not only end of the policy i'm looking under the statute and what does it mean i think it comes down to who's burden is it to either but that doesn't answer the question whose burden it is thinks no difference to me this record can determine that when we get back there yeah and the district court didn't make a specific determination me ask you the second question then it doesn't seem to me that anyone in this particular instance has been arguing this is a life insurance policy you know we made an argument below and much shorter and our brief on appeal that this this is if nobody's arguing this is a life insurance policy why is it that twenty thirty three twenty two one hundred one applies at all it only applies to life insurance policies although there was no argument made but i'm making up one for you see if you agree with it is that this only applies to life insurance policies and this is not a life policy that's what i thought you were arguing and i'm just trying to get that on the record what are you saying about that because i'm trying to put it right out there that's why i ask you the question seems to me your argument is this is the life policy nobody argued a life policy and therefore it doesn't apply in any event but you never have said that so i'm trying to figure out d policy if you will is both a life and disability policy if given that characterization does it matter what you call it no and it doesn't it's so long as it  disability insurance no i understand but why that is if you're not listening very carefully to his question why isn't it also a life insurance then too because the they've called it both so if we look at the definition of life insurance and i'm not aware that this is this life insurance for purposes of this subsection or not whether the statute is referring to an exception for life insurance is the yes though for under thirty three dash twenty two gauge one zero one subsection one is the policy at issue in this case life insurance i do not believe it is but i guess that's what he's asking you and this is what i was going to go i know what gold this god says this is both disability and life insurance are we then saying that we can parse the policies now such that one is disability but not life because it's disability and that might also be what the district court thought it was miscellaneous so we're saying it could be three we say can be misleading it's got to be disability but i really trying to get your input in can this be bold can it be anything but bull given goal i think if we look at the coverage as a whole the policy as a whole it could be both but the statute that we're looking at that acts the exception for suggest it could be one or the other i think all it suggests it can be both but the type of benefit is what we need to look because this policy has multiple different benefits i mean it includes the things listed here but also has a p s for example so when the exception refers to additional benefits to take it out of the disability insurance scheme i think we need to look at not just the coverage as a whole but we need to look at the type of benefit that's thank you your honor please quote my name is bill maddox i am the attorney for american general life insurance company in this case i think that as an initial proposition you need to start with what the law is with regard to how you interpret an insurance contract any insurance contract including one issue here and the law of this circuit is very clear sept fourth in the stamford branch case that interpret ing and insurance contract the court must first look to the insuring agreement and determine whether coverage exists and you do that by looking at the granting clause the insuring agreement so we i think everybody agrees that there's no coverage under the language of the policy i think i lease a sigh start from the proposition what your colleague says is well the policy in that case  violates the statute because the statute doesn't it doesn't allow you to did i coverage under certain circumstances i when the accidental deaths were results from the medicines taken into the care physician i'm rephrasing it and so what's the answer to that question when you answer that is you first have to have a loss that falls within coverage what he's talking about what accidental deaths we all agree accidental  are you telling me the statute doesn't apply to this policy you know what i'm saying is that the statute with the exclusion that they want to read into the grant of coverage does not apply in this circumstance we don't know your position so i understand it is that this statute only deals with the language of policy exclusions it doesn't deal with the language of policy coverage right absolutely it says that an insurance policy may it's a permissive exclusion that a policy may have a say you may have this exclusion but there is no law in the state of montana that defines accidental injury and says that if you write well along with a life insurance policy disability policy that if you write a policy you have to have a definition of accidental injury and here's what it would be maybe a definition hypothetical feeder have to tell me it's not this case with assume i have a policy that says it covers all accidental deaths and it's a very broad wording and it said the policy has in an exclusion that says but not accidental deaths caused by pick up the language of the pick up the language of the montana statute not accidental deaths caused by narcotics taken under the supervision of of a physician and that's your exclusion do you agree that exclusion would be inappropriate yeah because that's kind of i think it's kind of backwards if you have a broad policy it says we cover i will i meant to be back and then you have an exclusion that says but we don't cover accidental death if it's caused by somebody being in pox a kid or under the influence of an r car you know what you know we've now repeated my my medical tell me is there coverage under by you know your doctor prescribe it he gave you the narcotic and that caused or contributed to that to the death then yeah then than that exclusion of say well i'm sorry that brought exclusion ok is good that it doesn't fly ok so your position and if you look at the ruby case i mean that's that's a classic example of how the montana supreme court looked at this really is a case that involves a grant of coverage you had a case there that provided a policy that provided coverage for bodily injury or property damage caused by an occurrence and there was a definition of occurrence and the definition of a current was it was caused by an accident the consequences of which were neither expected or intended from the standpoint of the insured the plaintiff in that case made the same argument that the appellant is making in this case they looked at the u n groups and said i expected or intended from the standpoint of the insured and they said no no no vats and exclusion so they're trying to shift the burden of proof from themselves what was their stat in that case was there a statute that for bade such an exclusion if it were no not not that i'm aware of say that here there's a statute that seems to for bid a certain type of exclusion and what you're saying is we can get around that by by debt by defining our coverage yeah yeah because there's no statute money i think a good example is one of the cases they cited the smith case in california which is a case where there was california law defined accident for the purposes of the policy issue there it was the alcee definition in that case didn't control the statue control the statute in california said this is the definition of an accident and everybody agreed though so what you're really arguing it seems to me is that simply because your policy defines accidental injury as accidental bodily injury which is unforeseen and suddenly sustained without design or intent of an insured and then put that is not caused or contributed to but that's better than the exclusion if a were not under simply the definition but they had stopped at the end of insured person and put a period and then put exclusion over under exclusion not caused or contributed to that that would make a difference yeah i mean that's our democrat frankly i'm trying to figure out why why because you your insurance company and i appreciate your your situation because i was representing insurance companies all my life but why is it simply because you put the definition put it in the definition section that it's none the less an exclusion any different than putting it in the seclusion section which nonetheless excludes it well for the sins of any different because the insurance company has a right in the absence of statutory requirements to say you can't the insurance company has a right to define the limits of the coverage that it's exclusion that's sad it is not an accidental death if and then read a and that was your exclusion and and the accidental death occurred from taking from taking a prescription drug under the under the direction of a of a physician you would agree that the statute would would override that exclusion not the way you phrase it because i know because i have explained and that's one of the that's one of the let's assume you had a coverage provision that conflicted that if it were an exclusion would conflict with the statute ok with each other i think so ok and you know what you're saying is that's ok because it's a coverage provision not an coverage provision says we covered everything except take that except clause if that except clause were in exclusion it would conflict with the statutory provision so here if you have and that's my hypothetical it's easy answer yes or no why do that circumstance as i understand the question i think yes because i think if we're saying we cover accidental death accidental injury and here's our definition of accidental injury and it excludes accidental caused by taking medicine including a narcotic right that's prescribed by a physician then then i think yeah then you run into a problem because montana law certainly suggests that you can't exclude so ok so good now where and i wouldn't know we understand each o so this this definition doug goes farther this definition plainly excludes accidental death caused by a narcotic prescribe or if there's well it doesn't it is excluded accidental death caused by insurance companies you can get is a loser clever enough to put all your exclusions in the definition of accidental death these pollak this these provisions don't go don't force again i think it's not exclusions part of the grant of coverage and in the  the you mean we understand your are right i think it's a well again it's not an exclusion if you're saying if you consider to be an exclusion in this case or you has to be formally an exclusion and i think it's got to be formalized but if administered on the advice of a physician they still don't win this case well that's the next question supposing i say a is an exclusion ok then it seems to me that if a is an exclusion only conflicts to the extent that it would deny coverage to someone who had an accidental injury or death or that was cause or contributed by them being under the influence ok i'm now working on our back to judge space question  cross motions for summary judgment doesn't make any difference that for out of line here is i cannot determine whether in this situation given all the evidence crossed summary judgment or whatever that this person died under the influence of a narcotic administered on the advice of a physician because there are non narcotics which were provided to the same person and he died and i don't know who caused the death or who didn't and therefore i don't know whether it was under the influence of our narcotic or the influence of a non narcotic for which he died even setting aside there are a lot of his own i have to have an evidentiary hearing to narcotics is that enough to create him so if i'm not let's assume we're let's assume we have a case in which the question is did the person die under the influence of narcotics and you move for summary judgment is the insurance company in your say it's you know when doing a sell a tax motion it's your burden of proof mr mr plaintiffs a come up with something and he comes up with this what tops a report which says she she's got a bunch of drugs in her system in and one of them asked the question i'm asking you is this evidence would this be evidence sufficient to get past summary judgment well i think it would because i think that that simply having a narcotic in one's system does not judgment the question differently you're addicted to district court decide this issue and i thought the district court just said no problem here yet well so so now you're asking us in the first instance to decide a summary judgment motion think you were here before and we said why don't if that's the case why don't we ask if if we really think this is the issue should we ask the district court to address it in the first is this i suppose that that's an option if you feel that the evidentiary record is not sufficient to support the summary judgment motion that's a different issue then you know what right not the one in front of us could get doesn't go to the policy but we're simply saying you know we have we think that there's an insufficient evidentiary record then i suppose an option for this court would be  you is what is the effect of thirty three twenty two one zero one one and i waive my question because it seems to me i had is idea now i'd like you are in terms of whether this is a disability hosing that this is a disability policy and now we have a disability policy and it's an exclusion and this exclusion is can conflict with the montana statute it's thirty three twenty two one  one what effect does it have to this as well i mean if you're considering it to be life insurance as opposed to disability insurance so you're suggesting in that event since they only wanted to be disability insurance the fact that this says it's life insurance makes sense in a political whatsoever well my argument on on that is it doesn't matter whether you consider to be disability insurance whether you consider to be a life insurance or miscellaneous insurance i say you still have to fall within the initial of coverage no i just know we understand i understand when say let's assume you lose on all the issues in the case and we're forced now to figure out where the thirty fifth the way this subsection applies well why does it apply or not apply in your view well i think it you know it if it if what we're saying is it's life insurance and doesn't apply if that's how you come down on this case and that's kind of we're gault was because golf is and is is an odd and i sense an odd case but it's a case i think really has a direct application for sure dealing group group policies not individual policies this is an individual policy and it only dealt with conversion rights and basically it said because you can have these overlapping coverages i think that all that statute really said as i understand it neither of you think this exception applies i think that's fair that's all  or all right thank you very much i would just like to say thank you will thank you for coming from montana because to be fair you got and i know you did and arizona canada california get a guest who are trying to understand this montana morass of statute as a relates to insurance and it's good to have two good montana attorneys come and help all right so don't last thing you said gives me great comfort which is that you had trouble understanding it yourself thanks so case one six three five nine four three is submitted and i thank you both for being here thank you