good morning may please the court my name is david abney i'm here representing the plaintiffs appellants pavel off is my problem and the problem for the case it may or may not be unique but it is highly unusual usually when you have a problem concerning an insurance contract a clause that needs to be interpreted and the insured says it means one thing and the insurance company says it needs another you go to the court state court or federal court and you go to the judge because the judge decides these kinds of contract issues unless there's some sort of very strange underlying factual issue which is not the case here so one side says this is the plain language and here's how you interpret it and the other side says this is the plain language in this how to interpret but here they come into court in pawlowski two years after continental lost in the southern district of ohio on this very issue and the district court judge sweat says well there's no on site requirements in this cla period and continental you lose but in a non class action non class and so did that only bound continental in the individual that one case and then two years two years later we have a decision from the eastern district of ohio but it's not what you would expect where the judge says ok one side is right the other side is wrong and said continental comes in and says this is our historical way of interpreting the clause and then the next thing you know there's a solemn agreement and the suddenly agreement is not that this is how the clause is to be interpreted as a matter of law it's simply that continental isn't is going to apply the clause is going to enforce this clause is going to hamper that maybe easily so i understand it may not be a legal ruling that this is the way the clause is to be interpreted in future cases but your client was by virtue of the class action statutes a party to that settlement correct yes or white doesn't it at least pin know but but it seems to me doesn't this mean that your client can't claim that's a contract provides for i call seven by five you know what i mean provides for more than seven by five there was a there was a contract dispute in this class action about what this insurance contract required they said that one side of it had an argument that it required something that probably could never be achieved twenty four hours onsite continuous supervision the other side said no no requires much us they've arrived at a settlement your party with your client was part of that case she had the opportunity to opt out she didn't do so and so with respect to your relationship with continental as opposed to the world's doesn't that the fine with the country no it doesn't because all that that settlement did was to say this is how we are going to interpret and apply this in the future this is how we continental it we're going to do it right but it doesn't the flipside of that settlement and we the plaintiffs are not going to sue you for doing that i don't know because from comment from continentals perspective the settlement be then what's the purpose of the settlement then your honor i know it's like really annoying because i get these little cards and you know we all get these little cards and i know my husband just got a check for something like two dollars fifty three cents from some a t m take class action or something and you know don't cash it  but you know i mean whoever can figure that out and who ever really knows what they mean i understand what you're saying but the problem is they do have some legal effect well then what you're saying that it doesn't have any legal effect it bound them but not you it has an effect and it does bind them but now you're exactly right a pay you are one one nine sub part roman numeral five so part four this is a compromise it is not intended to impact the legal construction of the effective policy language order altered or construed the extent of requirements of any policy benefit is not evidence of such construction require means this is not mean of somebody that's not part of the class wants to make a claim these guys are saying we're not conceding this with the contract requires but as to all you class members who we've not opted out we've now we've now arrived at an agreement between us as to what the contract requires this is what makes pavlov maybe unique i know it's extremely unusual the point of this whole thing is pavlov only did one thing and it says continental is now going to interpret this clause in a particular way and if you me by the way that they interpreted it for instance if they have interpreted it as it was supposed to in the pebbles settlement but they still don't give you your benefits if you fit within the within this settlement parameters you have a right to separate your reading page if you go to the section on the e r one two zero section via on that page it says neither the settlement agreement nor any of the relief provided in this settlement agreement shall be interpreted to amend or alter the contractual terms of any policy tie that in with the clause that i just talked about and what you've got here is that you as the insured seeking to enforce your interpretation which is there is that there is no on site requirement and there is no on site requirement then you have the right to do that which is exactly what the whole demands were trying to do in this lawsuit but they were booted out because of the pavlo settlement that this i think that this three court was as confused as i or anybody else would be when you look at this as a as a hard nosed litigator or as an experienced trial judge who say what the heck were they thinking of when they when they entered into this sort of arrangement now into the it into the litigation and if you read the fine print best argument how to legally get around it well legally you take the plain terms of this agreement and look at it and it says but i'm not but we don't get to this so i guess what you're just saying is you just do it to novo interpretation of what the language that exactly right you look at it but if you look at it and try to interpret it as experience litigator experience district court judge you would go this this is strange what it does is it leaves all these rights of interpretation even to the people within the class if they'd allow for them to go into court if they want to do that and say look this is what it says there's no on site requirement in this clause and unfortunately in our case the district court didn't get into the meat meat and bones of what the side of the green actually said because deflected by this very strange arrangement lete reached in the pavlov case and the end result in public i think you read the fine print is that there was a two point three to five million dollar amount of money that was actually warded it went to the attorneys it went to pay cost and it went to provide incentives incentive awards to the class representatives and the class members got but it also it also subjected continental to paying off claims that that fell that's not right and it should have been one hundred percent of this policy that had been in force for many many years and she only got to use it when she was up into her eighty's starting in two thousand and twelve when she dies in two thousand and fifteen just to get a lot of benefit out of it but still it says what it says and it should be interpret the way it says and nothing in the pavlo settlement agreement is to the contrary if you actually look at the nuts and bolts of the continental be able to change their position in your litigation if you're correct so are they bound by the way they're going to interpret it well there are some analysts that so ok so if you're correct if i understand your argument they're just saying that's the way they're going to interpret the contract in the future so here's saying that doesn't buy me because that is in and correct interpretation of the language of the contract right and the pad last settlement specifically says it's a compromise not intended to impact she's not entitled to any of the benefits that's what they claimed well i know that's what they claim but under your argument are they able to take that position in the litigation or are they bound by what they have they said they would interp that when you go back to court you get to claimed to have laws against them is what you're saying that's what you're going to do yes you're on and that's why keeps i keep saying in if you read the fine print and then strike you it's not fair arrangement in papua settlements that only bind one side and not the other side you'd have to get into the minds of whoever was was came up with this language and who ever agreed to this it's a very strange agreement but the words are crystal clear i mean and in fact in many ways it's clearer than the actual contract that we're trying to enforce there's no quibbling about what it says not evidence of such construction requirements or intentions etc whatever let's go back to judge carroll has a question why is continental bound and then your client who would have been in the class and opted a fairly not to opt out why is continental bound and your client not go because continental agreed to be bound in order to end the pavlov case but isn't the operation of a class action binding you when you don't opt out well to the extent that that she that we would have the right to enforce the terms of the pavlovs settlement short we could do that but it kind of get from the settlement on a whole lot when you get right down to under your interpretation virtually nothing it said that this instead of our has because everybody would have what i guess i guess what it got  wise it's it no longer had the possibility of lawsuits for those people who who had seventy seven by five care right because it already agreed it would pay them off yet it ended the pavlova case is what it did and of course you can enter to very strange conditions to any litigation against you to make it go away and it is only get a pavlov case but it's a class action yesterday and at the crack that's in it's a class action and it gave some benefit to the class in the extent that they wouldn't be victims of what what they would be subjected to continental prior position which is a kind of causes historical interpretation they were no longer a victim so that instead of going to be victims of a different  your honor's i'm brian austin i represent condom casualty the settlement agreement pavlov is a lot less confusing and strange than councils making it out to be too to be it was an agreement to resolve the dispute about how to apply the nursing supervision requirement in this policy and specifically this viewed in pavlov was continental was taking the position that a nurse had to be supervising care directly on site twenty four hours a day because of the twenty four hour day language in the policy the plaintiffs did not agree they filed suit the suit went on for two years it was expensive there were depositions classification was briefed and then we reached a settlement there is no settlement agreement where only one side is bound and the other side is and there's no contract where one side is bound in the other side is that both parties to a contract are bound and that's what happened here in order to resolve on a going forward basis  dispute about what is supervision of twenty four hour nursing care the parties agreed that a nurse has to be onsite at the facility in question five hours a day seven days a week and that was the going forward basis  both continental and the members of the class which was included mrs haldeman s not dispute it in exchange for that kind of got a dismissal of the lawsuit it also got a police it got a release from class one which were the people that had been actually situation portion of the settlement agreement and the settlement agreement is in the district court record yes it is and one thing i think we should be clear about is that this issue was only raised by plaintiff in her entitled to benefits if she could prove that a nurse was onsite at her facility five hours a day seven days a week and so the focus of the briefing at summary judgment until the reply brief will assume the issues appropriate it has but i do want to emphasise that i think the position was waived at the trial court and so i don't think it's properly before this court but it has been briefed to the trial court treated as waived i'm sorry the trial court treated as waived the child court said that it was waived but then address it on the merits too so i did both so what does what happens with the continental policies now say i have an elderly parent this got all timers and i have purchased it today can they challenge the way interpret ing the policy no i mean the policy they don't sell these policies anymore but see you have somebody that you know somebody that has one of these policies and they went into this facility they would get coverage pursuant to the policy the terms of the policy as and also as the claim standards is in effect in pablum so if you go into a facility and it has a nurse on site five hours a day five days a week you would get don't know how much each of you charge per hour but i think that it's more than the amount that the whole case is worth so if this case about i believe th that opted out aren't down by it correct correct and you wouldn't dispute that no but it's about letting people that didn't opt out then have the same opportunity of those that didn't is we're talking about now is what i think is amounts to a collateral attack on a class action settlement when the language in the settlement agreement i think is very clear i mean the provision that make this argument is explicit in the first sentence and saying that what this settlement agreement is creating is a new claim standard to address these disputed claims and this new claim standard only applies to this disputed term and doesn't apply to any other terms in the policy so i found the language you were talking group what a claim it qualifies for care following standards shall be used to determine its center and center and then it goes on to say that claims handling change is discussed in this section shall not affect and the other term of the policy that suggests to me that it does affect some term of the policy what term of the policy does it affect it affects the term that's discussed in the prior paragraph of this section this is this by the way is not the release provision to me in the nursing supervision term in the policy is the one that's being addressed and it's being addressed because the parties disagree about what it means right and then that says we i don't think mr abney disputes what the settlement requires correct it says this this term of the policy will shall be interpreted as requiring the following so when you go to the policy and you look at the five requirements that a facility has to satisfy the one that this is addressing is the licensed nurses and so what this agreement is addressing is under the supervision of a licensed nurse nobody disagrees that if a der's is of the license a nurse is actually providing care or is actually physically present supervising care that there isn't nursing supervision that's taking place the dispute in pavlov was what happens when a nurse isn't on site right now and i think i think i understand that at least my question is this says this this is is this carefully drafted to be clear that it is not modifying policy language because this is a regulated industry and these are state approved forms this is a compromise business going forward and so the decision on how to do business going forward applies to this particular clause in the policy if this policy is part of the settlement agreement and it's important to note that a number of policies are identified in the settlement agreements as being affected by this but there are but the people opt out of this there would be there were two classes the class that the class two settlement was a non opt out class so the opt outs would have been in class one not in class two but they had the after opportunity to object and this is haldeman did not object but the policies are identified in the settlement agreement there are other policies with this same contract language that are not affected by th of the policy provision is put in there to make it clear that this settlement agreement and the compromise and settling agreement is not a concession about what the company's position would be in policies unaffected by the settlement agreement so really the intention of the settlement agreement was to establish what it calls and it was this term is disputed the parties don't agree so we're going to fashion a standard that will define the state of play going forward and that was a nurse physically on site five hours a day seven days a week and it obviously was subjected to a lot of litigation and briefing in the district court in ohio and nobody disagreed that the five hour days seven five hour a day seven days a week rule was clear and was binding on continental and some but it's also binding on the  a nurse there five hours a day seven days a week and so when the staffing changed after litigation was filed for a couple months after the the complaint was filed continental was notified that there were now was a nurse there five hours a day seven days a week and so she was put on claims and she's been paid ever since and she's has since passed away so this is haldeman has derived the benefit of the pavlov settlement she's derived for years she's drug benefit in the sense it's you she's she didn't have to sue you to at least establish that the position of people in the path of class was that that wasn't what the policy actually required rest and right and they were they said we're entitled to recover even if there isn't somebody on site that was there an issue and and so when you say she was the beneficiary of that settlement it just means she didn't have to sue to establish to establish what the class settlement established in the other part about this is that there's clarity in this in this agreement i mean it's an objective standard nobody is arguing anymore about what is enough supervision of twenty four hour care and what isn't because it's an objective it's a plainly objective standard if a nurse is there five hours a day seven days a week then nobody's going to argue about it and that was the intention of it was to give clarity and and finality to how to deal with this term which was obviously hotly disputed and i we can find it but i'm just interested in there's a steer's a release signed by the class representative yes but there is a there is a release provision that deals with class tax in the settlement agreement but not in the supplemental excess records that we provide correct ok there are a number of points that are raised in the palin's brief but i think it's it's the issues are pretty well teed up in our briefing and it seems like the issue was the pavlov settlement but i'm happy to answer any questions about you know the deposition testimony or any of that sort i don't care to have any additional questions thank as far as one side being bound in the other not being bound continental got the benefit of this bargain and pavel offered got the case dismissed and did it did a slight modification and how with said it was going to do things in the future and not in for injunction against it to force it to do that the only enforcement mechanism would be a breach of contract claim which would be a pretty hard thing to do for most people and so continental got an awful lot out of this strange bargain the date it hammered out and the pavlov case i'm sure it had a platoon of lawyers working on the language with the plaintiff's lawyers and this is what they came up with part of our job as lawyers and and i submit to the court as jurists is to enforce the plain language of these kinds of agreements but i case why i keep coming back to page ninety seven of separate mental excerpts it says the parties agree that this will be the way these claims are handled and you've got a client and you're a party so what  not in the parties or agreeing that continental is going to change the way it needs handling things i believe is is is what's going on here your honor in the brief excerpt of record forty five in the at the trial court continent quote continental agreed to amend how it would interpret this requirement as part of the settlement of a class action lawsuit in pavlov that's what continental was doing it was amending how it handled its own claims procedures but it left open and the language in this settlement agreement if people are saying this is not how this is not how i interpret the policy that you sold to me by the way the policy in this particular case has very strong language in it says you cannot change its policy on me and in fact if you want to change the policy it has to be i have to agree to it it has to be in writing on the policy signed by an officer of the entrance company which never happened we've got some very strong language in the pavlos settlement agreement that confers the right to challenge the interpretation of that clause and when it in its it says that the settlement is not intended with impact the legal construction of the this agreement we did we did bring an action to challenge no i understand what you're saying that the agreement as we construe the agreement it doesn't provide what the other side thinks is provides why shouldn't that action be brought in a district court in ohio but we're not challenging the the the agreement itself we're saying the agreement was intended to be expanded your way us to construe it we are we are considering the agreement in the in a very defensive sense and merely saying it doesn't apply