case that the courts rule in interpret in the insurance contract is simply to enforce the language there is within the policy that may be appropriate in some cases where the validity of the contract or the validity of the clause is not in dispute that is in in this case and specifically that the law as it relates to this case is that the court must examine whether that policy language complies with washington law and specifically if we look at how that we're referring to that  becomes an issue in the conformity clause the reason there is a conformity clause within these contracts is because they don't always contain clauses that do comply with washington law washington last civically r c b forty eight eighteen five ten of these policies that are being interpreted in accordance with washington law this is also what brings us to both the bush vs medico case and the duran case duran versus a for farm bushnell versus medical weasel and other long term care insurance claim in that case there was a three day hospital stay requirement and if you look at that case pacifically the court did not simply enforce that three day hospital stay the court looked at whether or not that was a valid basis for limiting restricting coverage under washington law and found that clause was invalid the same is true in duran duran's is the the watching state supreme force most recent decision which addresses terms and conditions that an insurance company uses that might or might not violate washington law under different no insurance contract can contain terms that are less favorable to the insured than terms that are either mandated or described in definition by the washington statutes therefore specific examples where this comes into play with respect to transmit because policy first the washington regulations are set up on a dichotomy between institutional care and community based health care community based health care is a third party provider coming into your home and providing the services in your home but aren't there separate things i mean doesn't the washington law deal with nursing home regulations and  living facility regulations yes it does your own but long term care policies are for institutional care institutional care is not limited to nursing home care or assisted living facility care those are two different categories within institutional care but that the institutional issue is is that is the operative language the institutional issue is that you have an overnight stay in a facility and they provide something more than that so the yes washington does identify a nursing home levels and and assisted living facilities family homes boarding homes but that still would be considered part of the definition of institutional care so the second or the first area is in that institutional care trans america is changing washington's definition of institutional care and inserting its own definition of nursing home in other words institution institutional care under under transmit this policy is limited to a is licensed as a nursing home but the key fact there again so what's the purpose of the rider i mean why would you get a rider if it was going to include all of this i mean wasn't that to expand the nursing home coverage to additional types of care like assisted living facilities no your honor if i can explain that the rider itself is what transamerica now uses to say that this coverage was excluded by the policy yet the statute specifically prohibit trans america from using a rider to differentiate benefit amounts based upon the level or skill care so no there is a statute specifically says that you cannot use a rider to say that we are going to offer nursing home benefits at this level the skilled nursing level and then assisted living facility level at a lower rate again because of the statute is written so that it's institutional care it's not they don't break it down in that way they do break it down with some defined terms specifically skilled care intern media care and personal and care and it's important to know that skilled care is also a term the trans america is substituting in connection with these cases we know that from the tips and scripts the transamerica gives to care scout and what they do is they tell us care scout don't use skilled care but go to the facility and ask them a question about nursing care and by nursing care we mean care that can only be provided the naval facility is licensed by the state of washington as a nursing home under their definition even though washington allows nursing care or skilled care to be delegated to sort of hide there is practitioners or others transmit this definition does not include that so they're using a more restrictive definition of nursing care they're also using a more restrictive definition of nursing home washington definition of nursing home says any care facility that provides care for as a number of individuals who are not related by blood or marriage for a period in excess of twenty four hours that would be considered a nursing home and in connection with this one it's more restrictive in the sense that is licensed as a nursing home the other area that specifically transpired he uses to narrow the coverage again comes back to the facility examine the facility form and in there they ask a binary question that binary question is is the care that this facility provides primarily related to the nursing care as we've defined it or is it primarily related to personally because the real care they eliminate any discussion or any interaction of intermediate care again skilled care intermediate care those are all the fine terms that must be provided in the policy and if you walk through the statutes specifically the washington regulations and that's to a for fifty four beginning it they provide triggers the coverage the section one five zero is the minute minimum standard for these policies what they must cover and then you have the permitted coverages the triggers the coverage and the exclusions now a few points to make here first of all when we talk about this policy transamerica is not citing an exclusion under the policy they're citing a definition and that definition comes in in terms of a trigger to coverage so again the statute specifically said that policies must cover and the two key factors there under two hundred four fifty four one five zero for a long term pure cover a long term care contract must cover skilled intermediate and customer deal personal care whether benefits are for institutional or community based care subsection six is no insurer may offer a contract form which requires prior skilled or intermediate care as a condition of coverage for institutional or community based care so transamerica is arguing that you must be admitted into a nursing home before you get coverage under this policy that's a clear violation of that statute and then in addition to that you have the trigger benefits triggers those are tied to activities of daily living and again the statute says nothing more restrictive than then tying those triggers the benefits to the activities of daily living and in connection with this case trans america insert this conjunctive argument that in order for there to be coverage of the policy three conditions must be met and the last one is it that care must be provided in a nursing home and that's the defined term of nursing home so again transamerica is not pointing to a definition or see an exclusion within the policy what they're doing what they're doing is pointing to an exclusion which could give me a definition of the term nursing home which comes up in the of coverage and again we pointed out that the grant of coverage is liberally construed in favor of the insured and here they're using it in a strict way it's also important to note that there is no that the washing statute specifically say there are fourteen reasons or exclusions that the long term care insurance providers are permitted to use they have to do with for example treatment a facility that is a drug or alcohol treatment facility a medicare facility or other types of facilities those are restrictions on where services cannot be provided and in connection with that there is no statute again it must be one of the fourteen in order to be permitted under washington law there is no provision that says that you can exclude coverage on of the policy because of sylvia's license as a nursing home so again they're using that as an as an exclusion and we raise that in connection with our brief they say well it's not a can exclusion it's a condition coverage and then when you raise it and say well it's a condition of coverage it violates the triggers the coverage or those statues and they say there's nothing watching law that prohibits us from limiting where these services can be provided that would be an exclusion and that is permit prohibited it's also  important one brief comment about substantial compliance the policies definition of nursing home contains a clause that says a facility that does not substantially that does not directly meet all five elements of the nursing home definition definition of nursing home was not met because the facility was not licensed as a nursing home it continues and says the facility is not in substantial compliance with the policy definition because of facility was not licensed as a nursing home that's a loser re promise of substantial compliance what they're simply doing is saying complete compliance with the policy definition is required that brings us to the bad faith the issue of bad faith there's procedural bad faith there are other substantive issues of bad faith and i use the term collectively because there's a common law bad faith claim there's an insurance for conduct act claim there's a consumer protection act claim the car when i use those that term bad faith i'm not referring just to the common law claim of bad faith in connection with this case we provided the court with evidence and the court's decision on the policy definition controlled its decision on the bad fa be said that no per no reasonable juror could find a trans america's actions were unreasonable given it straight forward the policy definition of nursing home bases for denying a claim once transamerica conclusively determine that age is was not licensed as a nursing home a fact that mr house he does not dispute it became reasonable for transamerica did in iowa claim for the nursing home benefits for care at that facility now that's not necessarily a correct statement of law as we pointed out there are issues  tiriel fact that were resolved by the trial court in connection with that specifically washington law provides that there still can be coverage or still can be a bad faith claim even if there is no coverage second under smith v safeco we specifically noted that the insurer can provide evidence of why they spoke to or or why they deny to claim but the insured is also allowed to offer a rebut rebut that and smith talks about the evidence that may be presented and creating an issue of material fact in connection with this case we pointed out that these policies were priced wrong from the start and they were they were assumptions made about the lapse rates and others this particular insurance carrier submitted rate requests rate increased requests to the office of insurance commissioner those were denied the thirty six deposition that we took in another matter of trans americas actuary attested to those issues and specifically we then also put put the evidence before the court that trans america was using its facility evaluation form as a pretext real basis for denying these claims we pointed out for example that trans america was informing care scale that it needed to use a very restrictive definition it didn't even tell its claim representatives that it was using this represent this restrictive definition when these claim representatives when they were asked the question of you know what definition did you use of nursing services they say i don't know you news i didn't use what transamerica used in its facility evaluation and i didn't favor i'd like to make it clear you're honest from the outset that the insured in this case was paid his claim for assisted living facility benefits under his policy and this is not a case about a claim denial it's not a case about a policy solution it's a case about different benefits available in the policy for different types of facilities and mr house's request that he continue to be paid despite that he's exhausted the assisted living facility benefit now under the nursing home benefit provisions of the policy it's undisputed you must remain in the assisted living facility right that he does his son wants him to remain in the assisted living facility that is correct you're on doesn't want to move him  and it been for that reason trans america offered him an alternate care provision which is a specific provision of the policy to contemplate such a situation where someone has been being paid benefits under the policy but perhaps their situation  suggests that they may need it or the most appropriate treatment for them may be something that is no longer covered as here the policy has an alternate care provision which allows the company to say well we'll continue to provide you benefits under certain circumstances under this alternate care provision they offered that to mr housey it would have continued to pay him the same level of benefit he had been receiving under the assisted living facility benefit up to through and including the exhaustion of his one hundred fifty thousand dollars of nursing home benefits but he rejected that offer inexplicably if you qualify for nursing home care benefits would have gotten more if he had accepted the alternate plan of care he would have stayed in the assisted living facility and any benefits he used under that and still can't move his father into a nursing home facility to access additional benefits they remain available to him the claim letter informed him of that fact so the policy defines assisted living facilities and nursing homes differently and they are two different types of facilities under washington law washington statutes is just the shock as i think you recognize there are two completely separate chapters on assisted living facilities and nursing homes they provide different types of  care mr house sees assisted living facility provides him with an apartment on it is very different from a nursing home it allows pets it provides personal care services that provide some assistance with medication that's worthing but not the type of nursing care that someone gets in a nursing home and that's not disputed the this appeal really involves a simple application of simple contract language there's a nursing home definition the policy that requires that the facility be licensed as a nursing home the argument that i heard this morning was that bad violates washington statutes and regulations understand his argument well and back up this moment you're correct if you just look at the policy like the terms incorrect about that your honor there is not a single washington statute or regulation that prohibits insurance companies offering long term care policies from differential differentiating among different types of facilities or requiring appropriate licensure order for still a facility to be considered a nursing home under the policy and our brief goes through each of those the district court carefully went through each of the regulations and statutes that he cited  basically rejected each one of those arguments out of hand and i can go through a few of them here so for example your honour's counsel talked about benefit triggers and he cited washington ministry of code two eighty four fifty four forty and the men if it triggers under this policy are a t o activities of daily living or cognitive impairment there is no question here that mr housey has met the benefit triggers under the policy he received benefits he's really been approved already for three types of benefits home health care which he did not use he instead went into assisted living facility assisted living which he has been paid  care which he has rejected and there is no question and it is undisputed in my client would agree that if he goes into a nursing home he has met the benefit trigger of cognitive impairment to be entitled to nursing home benefits next is the fact that  require him going into a nursing home is a benefit trigger yet that is incorrect and a misstatement of the of the statute in the law in the law right because the benefit triggers are identified in the policy and to the exact page so on page seven of the policy which is three fifty the benefit triggers are listed there the benefits the triggers are that the treatment has to be medically necessary it has to be required because of a cognitive impairment or it has to be required because of your inability to perform at least two of the five activities of daily living those are the benefit triggers and it is unquestioned that mr house he has met those triggers also  he discussed that washington ministry of code two eighty four fifty four one fifty that regulation provides minimum standards for long term care insurance it provides the policies must cover skilled intermediate and custodial or personal care whether the benefits are for institutional or community based care there's no question that this policy provides those benefits whether mr howe a c is in is receiving skilled intermediate custodial or personal care or any of those types of care if he is in the facility for which the benefit applies he will receive benefits so in other words if he's in a nursing home but he only has dementia and he only needs reminders with medication  and he only needs to be supervised but he doesn't require skilled care he will still be entitled to the nursing home benefit he simply has to be in a nursing home it's simple logic your honour's section subsection six of that section provides that the long term care insurance may not require prior skilled or intermediate care as a condition of coverage for institutional or community based care and this this relates to the type of condition that counsel referenced of for example a three day prior hospitalization requirement would violate that because the long term care insurance company would be requiring prior care  regardless of the benefit triggers in order for the nursing home coverage to kick in there is no such there is there is no such requirement under this policy as soon as he entered the assisted living facility for example and the assisted living facility  met the definition of assisted living facility under the policy he was entitled to assist the city benefits so there are multiple other statutes and regulations that are cited in the  brief the district court went through each of them the policy does not violate any of them so there was that was the last issue that he discussed was the substantial compliance with the yes your hon so with respect to first of all the substantial compliance definition were substantial compliance clause and policy is not exactly as opponents counsel described it the substantial compliance provision in the policy states that if trans america's personal care advisor agrees that the facility substantially complies with the nursing home definition it can provide nursing home benefits here the district court properly found that provision was not at issue because there was no evidence in the record the trans america's personal care advisor agreed that the filly substantially complied and indeed the facility does not substantially comply because it is a completely different type of facility it is an assisted living facility the provide primarily personal care services is not licensed as a nursing home it does not identify itself as a nursing home it does not attempt to provide the same types of care that can be provided in a nursing home  attempt to meet the regulations under washington law that would entitle it to be licensed as a nursing home so the facility did not substantially comply but that wasn't exactly the question before the district court the question before the district court was did trans america personal care advisor agree that its stance substantially complied and the personal care advisor did not and that is i'd like to reiterate your honour's that mr housey received thirty five thousand dollars of benefits under the assisted living facility provisions of his policy and he is still entitled to nursing home benefits what is somewhat baffling in this case is that mr housey son rejected the company's offer that would have allowed him to stay in the assisted living facility and continue to receive benefits at the same level up through the exhaustion of his nursing home coverage there was no reason given for that there is no evidence on the record as to why he did that and he wouldn't he doesn't have any damage even if there were a breach of the contract here which there was  not also he cannot say the bad faith claim he mentioned bad faith it is an absolute defense to a claim of bad faith under washington law if there is no breach of the contract there is one exception to that and that is what's called coventry claim under the the washington supreme court held that in some instances a first party ensured can be damaged by a bad faith investigation even when there is no coverage that would happen and in that case it happened because the even though there was the coverage decision was correct and there was no coverage the insurer refused to undertake an investigation of the insurance claim as a result the insured had to hire its own investigator and incurred expenses investigating the claim and providing evidence  claim there there is no such fact here here there is no question in the district court correctly found that the company undertook a detailed investigation even though it had already it already had benefits once my callously claimed that the that the benefits should be paid under the nursing home policy or the nursing home benefit the company did further investigation of the facility and it made a straightforward determination it made a timely denial and it made an offer that would have helped to mitigate any impact on him even though he was not entitled to those benefits so as a matter of law there is no claim here for bad faith and it is perfectly appropriate for the district court to decide a bad faith claim under washington law at the summary judgment phase when the  your honor i have additional time but i don't want to burden you who is more you know repeating my argument so i would just say here that the district court correctly made its the terminations on summary judgment it correctly denied discovery once  summary judgment cross motions were filed because the appellant did not point the court to any specific facts that it intended to find in discovery that would change the outcome and the district court correctly granted summary judgment on bad faith as well as breach of contract the you know first of all it's also talk about the differences the thirty five thousand dollars was paid as an additional benefit mr house he did obtain additional coverage for assisted living facility that pays him a lower rate one half of the route that the nursing home benefit pays and if you look specifically r c d forty eight eighty four zero four zero subsection five that that clause prohibits long term care insurance policies or benefit from differentiating benefit amounts on the basis or the type or level of nursing home care provided and that's exactly what trans america is doing then it was nursing home care provided but that's the definition in washington nursing home so in other words they're using their subs doing a mortgage and restrictive definition of nursing home for the washington definition and nursing home care is it broader saying it's more strict if because it says a nursing home has to be licensed by the state of washington that's one aspect to it yes the washington definition of nursing homes is any care facility so the i'd only have a brief minute but the care that mr how easy is paying on a daily basis one hundred sixty five dollars a day and they're offering seventy five dollars a day for his care if he was getting the nursing home benefit which he is entitled to under the policy he would be getting approximately one hundred fifty dollars a day and again there's nothing in the policy that prohibits the i'm sorry treatment and one of things i want to address briefly is treatment nursing homes do not provide dementia treatment transamerica is quick to say that they are authorized to provide it but those facilities to treat take it's also to keep them from wandering those are the types of things that a nursing home does not provide but in assisted living facility does an assisted living facilities or dimension facilities are specifically licensed as assisted living facilities that's consistent with washington law which is expanded the nursing care that can be provided in a facility that is licensed as an assisted living facility it specifically is trying to allow aging in place another thing the rep to recognize is that transamerica cites the definition of assisted living facility and in the policy when the policy was sold it's a very important to note that when when this policy was sold to mr housing there were no not one assisted living facilities in the state of washington but it lists assisted living i mean he bought a rider that assists assisted living so there is some understanding that the rider was going to cover assisted living facilities or cover something but that's a separate layer of coverage under the policy as well so if his if his care meets the policy definition of nursing home then you look at the triggers the benefits of the nursing home benefit think counts well your time was when you're inspired so you should complete your sentence submitted that's our last case for the day to be your you but i do want to commend counsel on both sides of the case for excellent arguments th will recess until tomorrow morning thank you