to nebraska uniform arbitration act rather than the aaa rules which incorporate essentially that the federal every tradition act and invalidating the arbitration and delegation provisions on that basis and this court also reversed on that basis i'm also happy to discuss the jury just the jurisdictional question because i know that was raised on the briefs but unless you think that's if you think that's necessary otherwise i'm happy to move on merit i would say the per the best use of time move on for the  term sectional issues so coming back to the first issue whether i can fail to challenge the validity of the two independent delegation provisions before the circuit court raised that issue i'm in its complaint in its opening brief on its motion arbitration did not mention the delegation provision or the aaa rules laws and just so we're all clear on the term the terminology here under the u s supreme court's read the senate decision you look at these these arbitration agreements here there are two separate independent bases for delegation one is the delegation pause which is in section thirteen b and requires that all this feud between the parties relating in any way to the construction or stability of the agreement go to arbitration and the last sentence there which says all disputes rising with respect to any provision of this agreement are fully subject to the terms of your patrician clause there are numerous courts federal appellate courts federal district courts state public or it's around the country of public that language implied defendants the opponents of mis characterizing the party's dispute as a dispute over the validity of the delegation clause but nevertheless at your argument the circuit court said we're right to on page nineteen of the report of proceedings well the trial court face here it seems to me we're in a different spot that the plaintiff has in fact raise the delegation issue of the trial court level maybe not in the first instance but ultimately by way of their filings they have at that yes but that's the difference between a challenge to the believe it be of an arbitration provision and a challenge to it still a challenge to the scope must under going all the way back to moses cone  delegation cause was in fact the delegation was not whether it was invalid under the nebraska uniform arbitration act not whether it was unconscionable in fact if you look at what they actually do in their brief when they start talking about unconscionably which is the challenge to the validity of the clause the delegation provision the aaa rules they're not mentioned again the only challenge was to the scope and the circuit court was required to look at the broad arbitration brought out asian provision that delegation pretty they walked away from it and it was only after the circuit court said if i do this that i'm going to decide the issue that they turned around and said ok we're challenging  the holding around the center say then you have to raise some time before you get to the u s supreme court that's actually wrestlers interesting because the reason why run the center did that you actually have to look at the footnote and what was going on there this is a pretty court didn't say you can hold your challenge to them delegation provision until it gets to us what happened was there was an intervening supreme court decision that created the basis for the challenge and run the senate and the party that was making the challenge didn't raise they had i think a year and a half between that supreme court decision and when it finally got to the supreme court challenge but this supreme court wasn't saying a center actually meant you can wait and challenge it when it gets to the supreme court or the appellate court would basically make all of those cases somehow improper it also there 's a ruling on that kind of a basis not only would cause problems for all those cases compelling arbitration based on the failure to challenge a delegation provision but it also theoretically would i mean i suppose maybe he didn't actually technically decide the issue he just said if i were to decide that issue if you had made that challenge then i would decide the unconscionably of the delegation clause and we would go down that would mean he made that i think we're talking about two different things this statement was after that brief but that reap did not challenge the validity of the delegation provision only at stoke and that if they mean by that but i'm trying to see the distinction when they say that they don't believe that i applies you characterize that as well they're challenging the scope it sounds to me like they're saying it doesn't apply there's two separate questions there's always two separate questions about in our prayers you're going to have to hear what you're saying is that what we need to decide is that there is magic language that must be used or not properly raise a challenge to the well it is no it's not magic language but you do have to challenge the validity the challenge raised as worded by or far does not and will not ever constitute a challenge to the app ability of the delegation but that's exactly the point your honor its applicability versus ability so when you look at an arbitration provision there's always two questions one is is the arbitration clause broad enough to encompass the dispute and the second question is is it valid under generally applicable contract law ok so if i come in and say this arbitration clause doesn't apply to our dispute but i agree that the contract is valid that's one type of challenge and that's the challenge they made here if i come in on the other hand  say yes this is a broad arbitration clause i don't dispute that that it covers this i don't contend that it doesn't cover this dispute but it was prepared by fraud it was unconscionable it was somehow otherwise improper not valid that's the second type of challenge and that's the point here they only made the first type of challenge and when you were in that type of challenge you you look at i thought they were thinking the entire dre by fraud or well some caution ability there's no claim of fraud but that goes back to this specific and direct point so once you start to challenge the validity of an arbitration provision and then a delegation cause you have to specifically and directly challenge the validity of the delegation provision itself it's not enough to come in and say well i challenge the entire arbitration provision as unconscionable and it necessarily included a challenge to the delegation provision in addition to the arbitration provision and he said yes which of course he would i would do the same thing if i were in his place he should go ok so now they it's clear they have but that's the problem so if if can you raise something at the end of oral argument in the trial court after the trial court has already erroneous leave decided an issue is that sufficient i mean if that's sufficient then i guess yes they they raised it but i don't think it's and this is the second issue the circuit court erred by allowing the generic choice of walk by selecting the press has substantive law to trump the incorporation of the aaa rules and that violates both united supreme court united states supreme court precedent and also illinois public court president from the third district of this court and to be clear this is not a preemption issue if you look at both preston which is the united states supreme court case an hour and holding which is the illinois public court case they both say and govern in accordance with the laws of the state of illinois the clause in in section thirteen of the r p a state the agreement shall be exclusively governed by and construed in accordance with the laws of nebraska so it's basically i guess they put governed by in accordance with construed in accordance with it but it's important to note the distinction here if the cause doesn't say arbitration in accordance with the laws of the state then the state arbitration act doesn't apply and it would also point out that in section thirteen in the choice of who are causing about any matter concerning this agreement that is not subject to the dispute resolution provisions of paragraph there so holding held that the incorporation of the aaa rules trump that generic state law that generic choice of lockwood's same thing under pressed preston says the best way to harmonize the aaa rules and a generic choice of law to read the choice of law to encompass only the quote substantive rights and obligations of the parties and quote but not quote special rules limiting the authority of arbitrators and dockings brief doesn't even mention preston they obliquely argue that the nebraska uniform arbitration act doesn't allocate authority between arbitrators and courts but that's exactly what it does it says courts can hear one type of challenge arbitrators can hear different one it's no different than what's going on in these other cases and just to be clear the nebraska uniform arbitration act there's not provide a substantive right or arbitrate or obligation the prohibition on arbitration in this context section twenty five twenty six zero two point zero one f four is in the breast the uniform arbitration act not to nebraska insurance code there is no similar provision elsewhere and if you look at what the nebraska supreme court itself is doing they don't treat it as substan pleas for counsel applied peels from two orders and by the circuit court first they appeal from judge yet or barry's september one thousand nine hundred seventeen or twenty seventeen order denying the plights a motion to compel arbitration of what they call the gateway issues arbitration under the delegate very rule that he was going to decide the at issue as well as the validity both of those orders should be affirmed very briefly as an initial matter i believe this court does not have jurisdiction to entertain the appeal of the september first order judge and then set a discovery schedule and a trial schedule for the at the at gateway decision should have been appealed would in thirty days but was not the cases that applied his sop as has cited to or this  he have jurisdiction of orders on the payout to the order that is an issue that ultimately is appealable as of right none of those involved orders that had an independent basis to be a substitution of judge brander denial was in immediately dealable discovery order isn't immediately appealable but when judge you had a very determined that he was going to side those questions and then s schedule as the record reflects judge or barry even set the status out because he recognized there were protests will for an appeal here and they didn't take so they had the issue could be your firm simply because the appeal wasn't time in of our opposition to apply its motion to compel or father argued that the plain language of the arbitration provision makes clear that the question of ability was not delegated  contemplated arbitration panel but remains with the core similarly later in the ad brief we specifically address the aaa rules and we stated that the arbitration provision  cancian ability and substance of action ability in the face of these challenges judge he had or very correctly determined that he would decide the political of the agreement to arbitrate and the nine one order should be here for the circuit court's march twenty second twenty eighteen order also correctly ruled that the delegation caused and the arbitration provision are on in for provides that nebraska law exclusively governs the green capital aid defined term every aspect of your griminess subject in the grass a lot the nebraska legislature exercised its regulatory power over the business of insurance when it declared that any agreement concerning more will waiting to an insurance policy is not subject to arbitra there are two nebraska supreme court cases crammer and citizens to chain down intervening between the trial court's decision or our filing of our briefs both of those cases are this in the bras correctly observed and decided that pursuant to the mccarran ferguson federal laws that are not related to the business of insurance why the federal arbitration must yield or as the case law says a reverse preempted by state insurance laws and regulations and it's for these reasons that courts in nebraska california virginia and new york have refused to force the arbitration provision or the issue here because it's illegal applied cites to cases like mass for bono and al ahram holdings to try and resurrect the provision but those cases are easy to distinguish because none of them involve reverse preemption or the regulation of the business of insurers really are those are all and in those instances under the f a a those state law crew visions because they don't have anything to do with insurance are preempted by the f a a and cannot limit arbitration accordingly i believe that this court should follow the president of the nebraska supreme court and affirmed judge atterbury as the charm a nation that the arbitration clause in the delegation clause of the twenty twelve hour should be disregarded as the comments in that provision state as some store sort of state but the restatement doesn't save the day because there was no mistake first of all there was there is no factual dispute we were before the court on summary judgment is a record indicated both sides agreed there were no factual disputes we are undeniably dealing with a contract of adhesion here all these terms were dictated by applied it was a take it or leave it contract so the restatement as it's comments indicate it isn't even applicable because there was no bargaining between the parties here that was somehow defeated by pick and choose and say whoa this part of nebraska law applies but this part this isn't very helpful for us so that we're not going to apply moreover if you think about it one of  main arguments that was rejected both by judge outer barry nebraska california new york and virginia was that well this isn't really a contract that is related to an insurance policy so i think that appears that applied at the time when they wanted nebraska law thought there was a way that this arbitration clause might have been aided the reach of the nebraska's prohibition on arbitration of insurance contract related disputes unfortunately for them it was that belief that was erroneous and that the incorporation of into brass the law to the you into the contract in any event even if you disregard the choice of won mandate as we set forth in our briefs a conflict analysis would still take you back to nebraska law and once again nebraska law would require that this arbitration provision and the delegation provision are in reality i'll leave it to the court whether you'd like me to go into the question of procedural and substantive on cancian ability the judge yet or very did not reach those grounds but obviously as we pointed out in our brief those grounds are before the court they could provide an alternative basis for the court to affirm even if the court found for applying on these other issues which i don't think you should i believe it's very well covered in our briefs and i won't take up the court's time unless you have any questions that i think otherwise be or should be thank you mr herm  one all of this discussion about preemption about the breast uniform arbitration act about what all these other courts have done is premature because you still have to gra second in terms of choice of why that is in a large sense what this comes down to it's not a preemption question i mean the amount of times i've heard preemption it just isn't relevant here under the case law under president under l or unfolding in terms of choice of law the r k does include a choice of all provision that selection of rascal law but it also includes the  contract and the party specifically chose the aaa rules that has meaning and that is what courts around the country hold when you incorporate the aaa rules it functions as a delegation cause they have never properly challenge that the only challenge they made is that the twenty twelve r k did not incorporate the aaa rules and if you look at paragraph thirteen i and i'm quoting and this they didn't even raise in the trial court all over creation proceeding shall be conducted in the english language in accordance with the rules of the american arbitration association it cannot be more clear that the twenty twelve hour incorporates the rules the aaa that means all of these issues have to go to the arbitrator in terms of nebraska law and the nebraska uniform arbitration i just want to make one point which is counsel raises cramer and says it's too but he doesn't talk about speech and i think stevens is the most important case because in spies they had a contract that had a choice it was provision that said the law and i'm quoting the laws of the state of california shall apply to any substantive evidentiary or discovery issues and the court there the nebraska supreme court did not apply the nebraska california arbitration law it applied the nebraska uniform arbitration act despite the fact that the contract required california that to me says that the nebraska uniform arbitration act is what it purports to be it's an arbitration law it's not substantive law and thus it doesn't apply here it doesn't invalidate the arbitration provisions if you have questions i'm happy to answer them otherwise