that question there are two things that i anticipate and if i can do one of them it will be ready to five people that would be fantastic one is i have a presentation ideas that i think will help you make this decision the nd one though is to answer your questions and if i can do like i said one or both of those i will have succeeded in what i came here to do to begin and i would like to begin with the this courtroom right now some might be nervous some might be some might not have had a very good morning at all maybe the response finally to the question how are you it's ok it's ok to be delighted that was one of the questions i wanted to know what a surrogate mother hood why don't we start there before we start with before we start with whether something is that big us why don't we start with what words we're talking about ok well the truth of the plan  not specified as however nontraditional medical services treatments and supplies which are not specified as covered under this plan including but not limited to pregnancy charges  acting as a surrogate would be paid by whomever the putative father d is correct well that's that's an option if the exclusion applies and if she was acting as a surrogate mother in this context and the treatment was limited to that so the st question is this what is a surrogate mother what is the difference between a medical charges in her by a natural mother and a surrogate mother the charges a medical chart is heard for delivering a child as a natural mother the trend is this other in a some type of relationship and we moralistic here just whether it's either in a traditional marriage or whatever and the and the medical fees incurred by a woman who is being a need to be a surrogate or who is volunteering to act so that one of the same if i understand your question surrogate mother her a woman who's acting as a surrogate goes in and if it's a similar pregnancy the treatment would be the same the charges with this are so getting back to the original question of what is a surrogate mother st of all the plan doesn't define that so i would ask this court to simply apply what a reasonable person would define as a surrogate mother and that is someone who is having a child it does not plan to raise that plan didn't define amongst the different surrogates and when a surrogate mother wouldn't wouldn't apply and that becomes problematic because especially in the recent government insurance cases insurers have a very interesting benefit because if they have discretionary authority they don't even have to give the best reason why they're denying something they can go all the way the phrase including but not limited to pregnant pregnancy charges acting as a surrogate mother and to the meaning in light of your interpretation ok with in terms of that interpretation it adds to s sex change operations might be in there what isn't listed in there is certain is right so what that tells me is that there isn't a general surrogate mother interpretation so in paragraph thirty one  t it adds is what is nontraditional be ok well let's say we we take out that phrase and so now it says nontraditional which is not specified as covered nontraditional medical services treatments and supplies which are not specify that is covered under this plan period right wouldn't you then have exactly the same argument about what paragraph thirty one dollars means that you do so in other words let's say let me ask a different question let's say a set including but not limited to broken bones ok ok now you still are going to have an argument that if there is a pregnancy charge for a natural mother or  a surrogate mother as long as it is a traditional medical service being offered to that mother then that is cover even if we change that last phrase to include it but not limited to broken nose and right your argument is that that last clause actually means nothing well you see i'm asking i understand the question that you're asking and i'm hoping that what my response will be will be to get at because we actually argued the inverse that the interpretation proffered by then takes out significance from the word nontraditional because if you remove those two if you remove that phrase then it seems to have a meaning in nontraditional wouldn't have a meaning what this is identifying at least this is what i think it ordinary reader would would look at that and say well then what does this at well this would suggest to someone who's receiving treatment for and acting as a surrogate mother that they shouldn't be getting treatment that is nontraditional and if they do that it won't be cover because there's an exam because they're now giving that example within that frame i mean i understand your question but going back to the hornbook definition of what an ambiguity is is  a plan is subject to two reasonable interpretations it's ambiguous but it doesn't end there hornbook answers are very simple but the nuance comes into play so the meaning or the to give meaning to the phrase including and my screen went blank bit including pregnancy charge baby or carry a baby and they strike the deal right who's paying whom and under that circumstance who's been hearing this scenario but let me just give you a different situation let's say the surrogate mother i can see any number of times where that mother would pay fees that otherwise you might think no they wouldn't and those are the rest of my time it please the court my name is scott hague and i'm arguing on behalf of all of the defendants apple leads in this matter your honour's the plaintiff ms moon did carry identical twin babies just ational carrier as a surrogate mother she's from idaho falls is where she was living and working where mountain view hospital is located the father the adoptive father wanted the baby born in boise so she actually went up to boise to be to have some monitoring because these identical twin babies were in a situation where they they each had an umbilical cord but they were both together in one amniotic sac so there is a heightened possibility of choking on the umbilical cord so there the adoptive father the record shows that page seven hundred and twenty six decided after consulting with medical professionals that the monitoring that there should be monitoring and he asked that that monitoring take place in boise so she is the surrogate following his instructions went up to boise and receive monitoring at that point she submitted the claim to tall tree administrators the claims administrator for this benefit plan and tall tree when it realized reviewing the medical record that this was a surrogate pregnancy denied the claim for the reason that surrogate expenses are excluded under the plan and tall tree relied on exhibit on exclusion number that's already been discussed didn't rely on number thirty three dollars right did not realize well the he'll be says surrogate expenses are not covered and so that's a specific reference to and thirty one dollars but didn't didn't specifically get into saying this is based on quote unquote exclusion thirty one dollars we thought it would just be clear if the occupational exclusion right  not specifically cited in the e o p s wrote so tall tree relied only on exclusion number thirty one dollars and that that exclusion states not specified as covered nontraditional medical services treatments and supplies which are not specified is covered under this plan including but not limited to pregnancy charges acting as a surrogate mother and this is a very clear and unambiguous exclusion if you can separate it into two parts the st part is a description of the class the general class of things that are not covered and that class is nontraditional medical services treatments and supplies which are not specified as covered under this plan and then it really gives further clarification with the language that your honors were focusing on and that is the example that the language is pregnancy charges acting as a surrogate mother getting it good i prob press you a little bit on why your interpretation is so logical based on the grammar so the last phrase including the block limited to pregnancy charges acting as a surrogate mother the word including suggests to me that what a pregnancy charges is not a medical service treatment or supply you understand what i'm asking i do but i think there was a missing and in this sentence just does not magically make sense to me well your honor i think that the example really clarifies it and the then the example every every kind of a service that a medical plan pays where every every kind of benefit is going to be for a medical treatment service or supply so that's just saying non treated nontraditional is really the word that matters in that general description so that we don't cover nontraditional medical care basically and then it gives the specific example and you know you can go back and say well this could have been stated even more clearly than it was but really when you have an example like that it specifically calls out a specific type of treatment a specific type of care that really makes it very clear and unambiguous can you just help me understand though maybe even just a dress opposing counsel's reading that nontraditional limits right off the bat and there's a whole world of traditional services that should be covered well you have to look at the language of the exclusion your honor and to to read that into it you have to actually at words do  saying nontraditional medical services treatments and supplies which are not specified as covered under this plan including but not limited to nontraditional pregnancy charges acting as a surrogate mother you would have to add the words nontraditional in there to make that interpretation work well i think their argument is just from the get go the use of the word nontraditional this is a very focused paragraph that only applies to nontraditional so you wouldn't have to you wouldn't have to repeat the word nontraditional because from the get go we're just talking about nontraditional services but the other problem with that argument is the you also would have no need to have the words included but not limited to pregnancy charges acting as a surrogate mother if you're just excluding nontraditional medical care and but the language is in there and  test that they cite is that a contract should be interpreted as a whole and all words when possible should be given their natural meaning so the court's task here is to take the entire exclusion read every word and use every word in interpret it to the extent possible and i think if you interpret it as the way we have in the way that we have suggested where you take that initial description of the class it's just a general statement of what's excluded and then you have a specific example pregnancy charges acting as a surrogate mother makes it very very clear as the district court found let me just go to and i think i've addressed the the argument the plaintiffs have made regarding the interpretation of the clause there are a couple of issues that i wanted to address the st is whether the court shooting should consider extrinsic evidence and the answer is no because in order to consider extrinsic evidence which would include course of dealing perhaps it might it might include the court's application of the doctrine of contra proffer anthem but you have to initially have to find that the exclusion is not clear and unambiguous for the reasons i've stated it is clear and unambiguous and in any event if you look at the course of dealing the record is very clear that in march of two thousand and eleven ms moon called in to tall tree talk to someone in the customer service department and there's a record of that call that was kept and it's in the record and that that call indicated that she was told no surrogate pregnancy expenses are not covered under your plan two years later in two thousand and thirteen she went ahead with the surrogate pregnancy anyway submitted those charges to tall tree and didn't say it was a surrogate pregnancy there's nothing at the top three denies that it knew that it was a surrogate pregnancy and there's nothing in the record to suggest it was a surrogate pregnancy no indication that tall tree could have could have known that it was a surrogate pregnancy in two thousand and thirteen and so top three paid those expenses but without knowing that it was a surrogate surrogate pregnancy it didn't set a precedent as to what the plan covered argues that the district judge had to specific lee in his oral ruling to the end of oral argument on the motions for summary judgment had to specifically consider or and reject alternative explanations is not reasonable well that's not a correct statement of the law and she doesn't cite any case or other authority to support that that proposition that the court just simply has to give a statement of the reasons for his decision and in fact if you look at the transcript of we're all argument you'll see that judge watts specifically asked counsel you know i don't get your alternative explanations what of the same dialogue that been taking place in in this court and  and and the answer was given and then judge watts at the end gave a very reasoned and careful decisions fanning over a couple of three pages of the record your honour's if you don't have any questions i think that seems to me as drafting wouldn't that be that we're not here to judge the exam question bork but why wouldn't that be a better way i think clearly would be a better way but i think the question before the court is not whether this could have been drafted more clearly which i agree it could have been drafted more clearly but it is absolutely clear and unambiguous the meaning of this closets ludes quote pregnancy charges acting as a surrogate mother quote thank you very much thank you when i walked into this court i had a bird in the court below the defendants have a bird and that bird was to show that the clause was unreasonable they didn't do that or if they did judge that one of the things that the court really needed to do is in looking that this exclusion clause do st farming that the alternate offering alternate interpretation was unreasonable secondly if because that's absent when working under the assumption that we have an argument that our interpretation is reasonable using that this court should look at the exclusion clause and interpret it narrowly there is meaning to the word nontraditional and going back to the question of the on page seventy three of the record that's where the phone call is where mr hall in two thousand and  asks about surrogacy and is told no well last weekend i had to replace refrigerator and you know what they waived the delivery fee but if you want to know what the st answer to was to whether or not they would waive the delivery fee it was no video what i asked again when i got to the actual cells men and the answer was yes claims are submitted both by participants and by providers the morse more likely thing