this case was we originally removed this case to federal court based on the allegations of the complaint so the actual damages were sixteen thousand dollars the original consumer protection act claim would have added a dditional four thousand to that based on a troubling some of the damages and then i think i would agree that what we're really dealing with here is whether or not there is a cry for your why didn't you know that's exactly right and so we may be where it should presumption standard is automatically using the presumption that the plaintiffs claim the deceit in the complaint that it's seventy five thousand dollars or more while that presumption is met in this case meaning that it would then turn to if there are legal certainty that the amount could not recover and had pointed been able to prove everything in her complaint we don't believe that that's true thousand dollars in punitive damages you know the general business law that the provision for going up two thousand dollars i mean that that seems to be punitive damages because that talks about well things that would be appropriate for them to look to are what amounts were planted cleaning that the corporations profiting off these practices what announce would take them to not try things like this in the future and i think it's important to that doesn't matter for the purposes of determining the amount in controversy and so that's why here we we do believe that the amount of controversy for holding now i also as we cited in our letter brief we for addressing new york when they mandated by the policy such as it is no to the policies that i'm referring to are the ones that the district court discussed of the that the terms of the plan goes south bar this recovery and i think that just goes to why administratively exhaustion is all the more important because regardless of whether or not the it not a license to ensure that they can the statute does say other entity it just insure insurance company or other entity what is other entity referred to so other absentee could refer insurance or insurance policies although they are not commercial insurers you still have to have a contract of insurance is what you're saying yes and so the contract insurance definition that playing to this room going on only licensing of insurers if we turn to the very next section eleven o two the insurance law says that no person or entity may conduct an insurance business unless they are properly licensed in new york state and it provides for a variety of penalties if you do so well new york state knows well about the existence of this plan and that is not licensed under article and because it doesn't offer insurance it is entities that provide pay claims under a policy of insurance or an insurance contract and this plan simply does not do that there are some out there that do but this is not one of them i would ask having on your client i mean your client was asked if she did to reimburse for monies that they had that the plan had paid out for her medical care yes there are no so in the plan went on brigade it's self to her claims against others responsible for the tort right the jessica why it made a recovery and she paid the money back to the the plan asking for the sixteen thousand dollars back she made a recovery based on the amount of injury and from that recovery she had to pay back the sixteen thousand dollars no no i got that but but but the fact that the plan is subrogate is itself to her claims what difference does that make to her in this lawsuit she gets her sixteen thousand dollars back if the because they're subrogate because they are engaged in subrogation and pursuing subrogated accounts subrogated claims they are manifesting themselves as if they were an insurance company that your point way and to repay the money the policy does not so regardless of the three hundred and thirty five when they said you have to pay us back because the policy requires you to do so that was wrong but  that's the catheters stiction run on it so that your efforts to be a class rep with her efforts to be a class representative right what it showed is that they had a fixed policy judge we hear when they talk about exhaustion and say gee if only we had a chance to to know what plaintiff's arguments mark it's a red herring your honor we have filed six priests in this case were at the nd circuit court of appeals they are still they are still telling every member of your court that they are entitled to the subrogation their decisions are based on attorneys they are based on the highest levels of the company your honor they have considered whether they are entitled to segregation a they say that they are even today how would returning the case for exhaustion allow them to reach or a different decision than they are telling your honor today they couldn't and judge if i could just briefly you've been asked a question the is not a party today that's true however the plan ultimately receive the money that is the arms health care health plan did make did receive the  though they're not a party today they've received the money from mrs wayne four hundred and sixteen thousand they received the four hundred thousand from all the other people so even though longer also there is not in the case today they he's responsible for the whole one hundred for the whole one thousand dollars that he took he can't say why i don't have it anymore i gave five hundred dollars away get it from someone else the person who does the wrong is responsible for all the wrong that they did what they do with the money