must be reversed because of error that resulted in him being deprived of his rights under federal law in particular the mccarran ferguson act and also pardon me regulate insurance and one of the issues in this case raised by pelly lloyds is that they are not subject to regulation and that would be an end run around the year term and you hand an offer of renewal to go forward and that he would get back to growing when he got a contract so what difference do any of the nevada statutes make given those facts was an offer of renewal and your client rejected it well the trial court concluded that as a factual matter which is immaterial disputed fact as a matter of law and there was no basis to do so for these reasons number one there is no evidence that mr schmidt declined renewal what you have is a circumstance as the record reflects where  line the broker sans three documents as part of a renewal offer an offer of renewal in a letter a price quote with a list of coverages that repeated the existing coverages and third a premium bill mr schmidt returned was simply the rick the premium bill itself with a circle around the amount of the premium with a statement scribbled on it that said i don't have a contract i will call you now that i will call you this is not a denial or or rejection of a renewal as a matter of law and further i believe your honored has to be considered in the context in which  communicated to mr smith which is on the day before not thirty days not sixty days before the end of the initial term of the insurance  over saying lloyds is agreeing to renew there's an increase in premium ok get back to me quote as soon as possible close quote there was no deadline on the response communicated to mr schmidt in addition on the premium bill where the circle in the note appeared if you look at that what it says at the bottom is please make out a check for that i'm out and mail it now this is the day before the last day of the initial policy term so clearly there was no contemplation on the part of course line that they were going to receive an acceptance or that they were going to receive a premium payment prior to  the next day the fourth because there were no terms set out for it to be accepted in that context given the history of the policy which was as you recall that the policy was issued in one thousand nine hundred ninety for a period back to january starting never the policy but michael my point being that the course of the relationship including the very terms of the renewal offer were not conditioned on receipt of premium on a specific day when he circle sent it back and it said at the bottom which you had a right to rely on it will remain open for thirty days which would have taken it out to at least february second or third yeah just so so we're on the same track i i don't think this is a question of returning to premium i mean it's a question of accepting the offer that was needed in the facts which was the purpose of the policy the new policy and the new premium in force by january thirtieth or had to be a return of the renewal form and approval of the plan and neither of those happen indeed the handwritten that says well i don't have a contract i will call i will call to discuss and that's a let's just assume for the moment that the contract was not accepted and with rejected  t as you say he said i will call him and that's where we are but if you have an offer you said i'll get into it with you right now and you have an because it says by its terms that the period of insurance is the initial charm plus any additional terms we may agree upon and that is further informed by the policy term that says or conforms with state law and this for they're informed by the to the insured at a minimum of thirty days and if its renewal on different terms which this is sixty days and that is consistent with what the the gross line proposal was which was this will remain open for thirty days and therefore if there was never a premium paid in those thirty days the policy is still in force mr smith's unfortunate injuries occurred very early in that process certainly within those thirty days and the policy remains in force b by its terms of the offer and by nevada insurance co it's just it's just never last and i don't see understand how you can can can read a policy that says the once the once the extensions required have expired if there had not been an agreement to renew then the policy would not have been renewed but it remains in force past amended by the statutes therefore the statutes you must be considered part of the policy and by and by those non renewal that the period is extended under the what i've stated there is no further language in the policy other than the conformity provision that directly addresses renewal what conformity conformity provision in the statute which is a mandatory provision under the  but that that's the only if the statute doesn't mean what you say it means then you lose that point the policy is not in effect right right but but under daniels and the statutes absent notice of non renewal on a renewable policy or absent notice of cancellation the policy remains in force for the minimum statutory periods and that's what we have here and if you don't have a non renewal know if i may just  affords you no relief then you're back to an offer acceptance right and on yes you're back to that end so there is a question of material question a fact that should not have been resolved as a matter of law yes well that's what i'm getting let's forget the nevada statutes and what implication in my for the policy what is your best argument that you have a genuine issue of material fact as to whether or not this policy was renewed and effective as of the accident one it's a cryptic ambiguous note that was written by a person who just received notice on the last day of the initial policy term who was just leaving that evening to go on the indy racing the circuit and had a lot to  do and given that at the last minute that last minute no reasonable person would think that they had to get a check in the mail by midnight that night given that i think that i think the more important question is not that he rejected it but when he accepted it when and unequivocal rejection of the offer and it was accepted within the thirty day period prior to any further notice that the offer had been withdrawn therefore it was an accepted  the court william roberts first pallies certain underwriters that lloyds and with the court's permission i'd like to take fifteen minutes of the time and reserve five minutes for ms jensen whose four course line and as we actually have three key issues still feel in this case first did mr schmidt declined the offer of renewal of his policy and let it expire on its own terms on january fourth which of course we've just in his appellate brief mr schmidt takes the position that that was academic because the judge granted the motion motion for underwriters if it was academic at that point in time that that issue was whether or not any of these nevada statutes applied if it was academic at that time then i submit that it should also be academic before this honorable court as to the two one issue that was raised at the outset returned therefore he would have a policy the policy on the application or as on it on the communication in the form that he had to fill out it also said that it was subject to underwriters approval received the original form which was more complex this form basically can they needed to confirm approximately how many races and what type of races he was going to be running that year and also confirmation  even though the form hadn't been completed i agree you are on to the mr gorst line would ask provider but as as was established mr gorst line did not have authority combined under well that's a different question the question is that's an entirely different question the question to me is is this an offer that's valid for thirty days it seems to me that it's not an unequivocal rejection and certainly not an accept i mean that's a factual question so if it's a ballot offer for thirty days then we just have to evaluate whether or not it's open and properly accepted and binding right and i don't know if we can ever over the court  and in the court's ruling on his finding on that issue he noted that not only the note that he sent back but also the failure to pale pay premium and the failure failure something after a few days that you have thirty days to assess why is it clear that that's an unequivocal rejection i think that's found your honor in the in the statement itself that he did not have a contract to dry right negotiation he went through in the previous year on the specific contract provisions was also a fairly expensive policy and that was also highlighted when he circled the the amount of the premium it gone up from fourteen thousand to seventeen thousand eight hundred that was due to the fact that in october he had an accident and as of the time of january third he was still being paid disability payments for that accident he had not yet been medically cleared to drive yeah the the doctor had cleared him as of january fifteenth to drive on that and that's actually also a key point he didn't have a contract why should he want to pay an expensive premium of well over a thousand dollars a month reinstate or to accept the offer yes you know with through yes you know yes he would and it could have been done very quickly at that time because he would also have been cleared to drive the but he didn't have a contract at that time the and he period you know i don't have a contract so i'm not accepting now but i'll call you saying i am not going to accept it any time within the thirty day period he also he also this was the very beginning of the races and the first race of the season would be in the end of january and that he was injured the previous year in the last race of the season in october there are only a limited number obviously of race race car driver positions to be filled those can only only happen happen and really filled up presumably in january or maybe maybe slightly into february he would not necessarily this was not going to be a jury trial this was a bench trial would be would be conducted by judge dawson who was the same one in five days that doesn't change our analysis though doesn't well except that that presumably judge dawson believed that at that time he certainly had all the evidence he needed to make that ruling rather than sitting through a three day trial to hear the same evidence but really i guess at the end of the day it comes down to your position comes down to that as to the to the other two issues underwriters writers except that they are are subject to nevada statutes on insurance which apply to them and that is primarily in the inspections six eighty five at sec which deals with surplus lines polic fact lloyds was not admitted in the vatican and could not have written health insurance in the vatican because of that because that isn't limited to admitted carriers it was a very specific policy of surplus lines and as like most or plus lines policies that specifically designed to cover very unique high or special risks which other carriers are not one going to write in that area  legislature understands and has demonstrated they understand that not all policies which have some aspects of health coverage fall under the rubric of a health insurance policy under n r i section six eighty one zero eight zero two zero covers casualty insurance they state provisions of medical hospital surgical and funeral benefits and of coverage against accidental death and injury as incidental to and part of other insurance as stated in various the code deal with health insurance itself and not with other programs such as that or and not with where ancillary health provisions such as are here for disability or injuries from accident or sickness which takes them out of the racing circuit this was a very special special policy for race car drivers it presumably a mere handful of possible nevada residents would never require this about four minutes i'm jan jensen with laxalt nimer on behalf of the third party defendants john course line in the course line company i'd like to just focus on two issues that i feel from the court's questions you have some question about first is putting that january third facts transmittal into context the court was not just given mr schmidt's report or reply sorry john was also given mr smith's own testimony that he saw and understood the facts he knew his insurance was expiring in two days he knew it said or interpret it to say send me a check or you're not covered all of those go to the fact that mr schmidt knew that the first policy was in fact expiring so then we turned to whether or not there was a renewal and an open offer to renew for thirty days mr schmidt never contacted mr gorst line indicating he wanted the coverage he testified he never told john course line he wanted coverage for the two thousand season so we accept the fact that this quote language which my client contends was a price quote that we try to hold this price open for you on the same terms for thirty days if it was open and mr schmidt had not rejected it he certainly had not accepted it before his accident and that's a critical point here that i don't think we've addressed this morning is even if we had an offer that was open it cannot be accepted after the loss has been  one after they've insured a loss i'm not talking about someone who doesn't have insurance from him but someone who gives a shit whether when you do have insurance and you're in the period of renewal whether that auto accident case yes that there is case law in the last act and lot of it is not about a lot know your honor i would know that a law is very sparse in this area but the general contract principles apply here that even if you interpret mr gorst lines price quote as an open offer for thirty days there is no indication that mr schmidt accepted that offer before he was injured what you say is merely a price quote i mean i gather your racing activities certainly a driver who is disabled may present more of a risk to lloyds than a driver who is in good health and lloyds knew from the october one thousand nine hundred nine accident mr schmidt was disabled and was drawing disability terms before issuing the policy so but in the normal course just so i'm clear on this i mean i have a sense of what happened so let's assume no nothing no accident occurred you get the track at that point you would have issued a binder i'm sorry so them for example if it's the paperwork hadn't been received the renewals proposal form that's that's something that would occur in the normal course of valuating it for underwriting purposes while you get the insurance and place right in the normal course yes i believe if there had been an indication that the insurance was desired want to please place it it could have been done with the details worked out later but the important thing is the accident occurred before any of that took place thank you like this spend an issue sometime on the surplus lines issue raised by lloyd's council this was not a surplus lines policy it was not sold as a surplus lines policy the policy itself  underwriting issues because of his occupation which is no different than a disability policy issue to a concert pianist different risk but very sensitive to n f l football players and whatever so it doesn't make it somehow a surplus individual policy in the state of nevada and their underwriting the risk it doesn't it doesn't take it out of the insurance regulations and statutes that apply to what is called health insurance under nevada law under a lot of states including california be considered accident sickness insurance but it doesn't take it out of it doesn't exempt it from regulation under the health insurance  are fully valid and enforceable and given recognition but then under six eighty five eight zero nine zero it says that with regard to surplus lines that if those contracts are  those doctors together if they are accepted then we are sold that way they are given the same effect as like contracts issued by authorized insurers in other words it's an accident and disability policy it covers it doesn't cover accidental death it covers total disability it covers a temporary disability and it covers medical payments that are due so it is it is is covered under the health insurance definition and further as we br d there's a specific statute in the vatican that list what is exempted from the statutes we've talked about we've listed and this is not one of them it's not exempt from  okrent again presumes must presume that there was no insurance in effect at all under under any condition when the loss occurred this is typical of all insurance our own auto in the case of the  close with this disc because of questions revolved around the run this is somehow there was an unfairness our auto insurance or you don't call your broker and say gee it's coming up you are you going to renew me is because the burden is not placed on the insured to do that it's placed on the insurers and the insurers agent or authorized broker in this case to comply with the notice requirements in anticipation of renewal one day doesn't comply with anything and it's their burden not the insureds to assure renewal offers and the like and mr schmidt had a right to rely on both the law and the conduct of course like thank you thank you